[Federal Register: June 6, 2002 (Volume 67, Number 109)]
[Rules and Regulations]               
[Page 38841-38844]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jn02-1]                         






Rules and Regulations
                                                Federal Register
________________________________________________________________________

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[[Page 38841]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 77

[Docket No. 02-021-1]

 
Tuberculosis in Cattle and Bison; State and Zone Designations; 
Texas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the bovine tuberculosis regulations regarding 
State and zone classifications by removing the split-State status of 
Texas and classifying the entire State as modified accredited advanced. 
This action is necessary to help prevent the spread of tuberculosis 
because Texas no longer meets the requirements for split-State status. 
In this document, we are also soliciting comments on the current 
regulatory provisions of the domestic bovine tuberculosis eradication 
program.

DATES: This interim rule was effective June 3, 2002.
    Compliance Date: The date for complying with certain requirements 
of 9 CFR 77.10 for sexually intact heifers, steers, and spayed heifers 
moving interstate from the State of Texas is January 1, 2003 (see 
``Delay in Compliance'' under SUPPLEMENTARY INFORMATION). The 
compliance date for all other provisions in 9 CFR part 77 applicable to 
the interstate movement of cattle and bison from the State of Texas was 
June 3, 2002.
    Comment Date: We will consider all comments that we receive on or 
before August 5, 2002.

ADDRESSES: You may submit comments by postal mail/commercial delivery 
or by e-mail. If you use postal mail/commercial delivery, please send 
four copies of your comment (an original and three copies) to: Docket 
No. 02-021-1, Regulatory Analysis and Development, PPD, APHIS, Station 
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. 02-021-1. If you use e-mail, 
address your comment to regulations@aphis.usda.gov. Your comment must 
be contained in the body of your message; do not send attached files. 
Please include your name and address in your message and ``Docket No. 
02-021-1'' on the subject line.
    You may read any comments that we receive on this docket in our 
reading room. The reading room is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Joseph Van Tiem, Senior Staff 
Veterinarian, National Animal Health Programs, VS, APHIS, 4700 River 
Road Unit 43, Riverdale, MD 20737-1231; (301) 734-7716.

SUPPLEMENTARY INFORMATION:

Background

    Bovine tuberculosis is a contagious, infectious, and communicable 
disease caused by Mycobacterium bovis. It affects cattle, bison, deer, 
elk, goats, and other species, including humans. Tuberculosis in 
infected animals and humans manifests itself in lesions of the lung, 
bone, and other body parts, causes weight loss and general 
debilitation, and can be fatal.
    At the beginning of the 20th century, tuberculosis caused more 
losses of livestock than all other livestock diseases combined. This 
prompted the establishment of the National Cooperative State/Federal 
Bovine Tuberculosis Eradication Program for bovine tuberculosis in 
livestock.
    Federal regulations implementing this program are contained in 9 
CFR part 77, ``Tuberculosis'' (referred to below as the regulations), 
and in the ``Uniform Methods and Rules--Bovine Tuberculosis 
Eradication'' (UMR), which is incorporated by reference into the 
regulations. The regulations restrict the interstate movement of 
cattle, bison, and captive cervids to prevent the spread of bovine 
tuberculosis. Subpart B of the regulations contains requirements for 
the interstate movement of cattle and bison not known to be infected 
with or exposed to tuberculosis. The interstate movement requirements 
depend upon whether the animals are moved from an accredited-free State 
or zone, modified accredited advanced State or zone, modified 
accredited State or zone, accreditation preparatory State or zone, or 
nonaccredited State or zone.
    The status of a State or zone is based on its freedom from evidence 
of tuberculosis in cattle and bison, the effectiveness of the State's 
tuberculosis eradication program, and the degree of the State's 
compliance with the standards for cattle and bison contained in the 
UMR. In an interim rule published in the Federal Register and effective 
on November 22, 2000, (65 FR 70284-70286, Docket No. 99-092-1), we 
recognized two separate zones with different classifications in Texas. 
Portions of El Paso and Hudspeth Counties were classified as a modified 
accredited advanced zone, and the remainder of the State was classified 
as an accredited-free zone.
    Recently, two tuberculosis-affected herds (a beef herd in the 
summer of 2001 and a dairy herd in the fall of 2001) were detected in 
the accredited-free zone of Texas. Under the regulations in 
Sec. 77.7(c), if two or more affected herds are detected in an 
accredited-free State or zone within a 48-month period, the State or 
zone will be removed from the list of accredited-free States or zones 
and will be reclassified as modified accredited advanced. Therefore, we 
are amending the regulations by removing the split-State status of 
Texas and classifying the entire State as modified accredited advanced.
    The two affected herds detected in the former accredited-free zone 
in Texas have been depopulated and a complete epidemiological 
investigation into the potential sources of the disease has been

[[Page 38842]]

conducted. In addition, we have heightened our surveillance activities 
at slaughtering plants in Texas and in the surrounding States. We will 
continue increased surveillance activity for up to 20 years after the 
State (or any future zone) has been classified accredited free.
    Under the regulations in Sec. 77.10, cattle or bison that originate 
in a modified accredited advanced State or zone, and that are not known 
to be infected with or exposed to tuberculosis, may be moved interstate 
only under one of the following conditions:
     The cattle or bison are moved directly to slaughter at an 
approved slaughtering establishment (Sec. 77.10(a));
     The cattle or bison are sexually intact heifers moved to 
an approved feedlot, or are steers or spayed heifers; and are either 
officially identified or identified by premises of origin 
identification (Sec. 77.10(b));
     The cattle or bison are from an accredited herd and are 
accompanied by a certificate stating that the accredited herd completed 
the testing necessary for accredited status with negative results 
within 1 year prior to the date of movement (Sec. 77.10(c)); or
     The cattle or bison are sexually intact animals, are not 
from an accredited herd, are officially identified, and are accompanied 
by a certificate stating that they were negative to an official 
tuberculin test conducted within 60 days prior to the date of movement 
(Sec. 77.10(d)).

Delay in Compliance

    Nationally, most animals that are moved interstate are sexually 
intact heifers moving to feedlots or steers and spayed heifers. Prior 
to this interim rule, the identification requirements for such animals 
found in Secs. 77.10(b) and 77.10(d) applied only to approximately 120 
cattle moved annually from the small modified accredited advanced zone 
in Texas. However, this interim rule's classification of the entire 
State of Texas as modified accredited advanced will necessitate the 
identification of all sexually intact heifers moving from Texas to 
feedlots (both approved feedlots and other feedlots) and all steers and 
spayed heifers moving interstate from Texas to destinations other than 
an approved slaughtering establishment. Approximately 3 million cattle 
per year are moved interstate from Texas.
    Given the large number of animals that will now require 
identification before being moved interstate from Texas, we recognize 
that additional time will be needed before full compliance with the 
identification requirements of Secs. 77.10(b) and 77.10(d) can be 
achieved. Identification devices must be obtained, the procedures and 
processes for numbering the identification must be developed, and a new 
State-Federal system to record the data from the identification may 
need to be developed, if the existing State-Federal system is not 
adequate to deal with the volume of cattle. Once the system of 
identification is developed, it must be communicated to the State and 
Federal animal health officials and the industry before it can be 
coordinated and implemented. Since the system and procedures to be 
implemented have not yet been determined, we do not know if any new 
information collection or recordkeeping requirements will be necessary.
    The primary purpose of the identification requirements in 
Secs. 77.10(b) and 77.10(d) is to allow for traceback in the event an 
animal is determined to be infected with or exposed to tuberculosis. If 
an animal is found to be infected with or exposed to tuberculosis in 
slaughter channels, it is necessary for control and eradication 
purposes to be able to identify the premises from which the animal 
originated as well as the places it has moved through since. Individual 
unique identification provides the most effective traceback capability. 
However, if an animal is moved from its premises of origin without 
identification, the value of any individual identification that might 
be applied at some later point is diminished. Because most of Texas 
held accredited free status prior to this interim rule, animals that 
have been moved from their premises of origin into channels leading to 
slaughter have not been required to be identified. Animal health 
officials in Texas have suggested, and we agree, that identification 
efforts should be concentrated on animals that are still on their 
premises of origin. Those officials expect that all animals that have 
already been moved from their premises of origin will have completed 
their movement through normal industry channels by January 1, 2003.
    Therefore, in the former accredited-free zone that encompassed most 
of Texas, we are delaying the date of compliance with the following 
interstate movement requirements of Sec. 77.10 until January 1, 2003:
     The identification of sexually intact heifers moving to 
approved feedlots and steers and spayed heifers (Sec. 77.10(b));
     The identification requirements for sexually intact 
heifers moving to feedlots that are not approved feedlots 
(Sec. 77.10(d)); and
     Because identification is required for certification, the 
certification requirements for sexually intact heifers moving to 
unapproved feedlots (Sec. 77.10(d)).
    The identification requirements of Secs. 77.10(b) and 77.10(d) will 
remain in place under a memorandum of understanding with the State of 
Texas for animals in the former modified accredited advanced zone in El 
Paso and Hudspeth Counties. All other applicable provisions of the 
regulations will be in effect as of the effective date of this rule.

Request for Comments

    In addition to requesting comments on this specific change in the 
tuberculosis classification status of Texas, we are requesting comments 
on the current regulatory provisions of the domestic bovine 
tuberculosis eradication program. Based on our experience enforcing the 
regulations, on information received from the public, and on the 
availability of new testing strategies and disease prediction models, 
we are examining whether certain changes to the regulations would be 
appropriate.
    Although we are inviting comments on all regulatory aspects of the 
domestic tuberculosis eradication program, we are particularly seeking 
comment on the following issues, which are discussed at greater length 
below:
     Identification requirements associated with the interstate 
movement of sexually intact heifers;
     Timeframes for tuberculosis prevalence in determining a 
State or zone's qualification for a particular disease risk status;
     Appropriate exceptions to disease prevalence levels 
governing a State or zone's status when there are a limited number of 
herds in a State or zone; and
     Conditions under which animals could be moved from 
nonaccredited areas without incurring an unacceptable risk of spreading 
tuberculosis.
    The risk of an animal spreading tuberculosis is much higher in 
breeding animals than in animals destined for slaughter. Heifers are 
currently considered as breeding animals because they are sexually 
intact. However, heifers that move through feedlots could be destined 
for slaughter without being bred. The regulations do not distinguish 
between heifers intended for breeding and heifers destined for 
slaughter. Therefore, we are asking for comments on distinguishing 
between the destination of heifers and where in the movement process to 
apply any identification. We are also requesting comments on what type 
of

[[Page 38843]]

identification, such as applying brands to heifers destined for 
slaughter, could be used to distinguish the destination of heifers.
    The regulations stipulate the periods of time States or zones must 
retain certain tuberculosis prevalence levels to qualify for a 
particular risk classification, which vary depending on the risk 
classification and other factors. For example, Sec. 77.9(f) provides 
that, to qualify for accredited-free status, a modified accredited 
advanced State or zone must demonstrate, among other things, that it 
has zero percent prevalence of affected cattle and bison herds and has 
had no findings of tuberculosis in any cattle or bison in the State or 
zone for the previous 5 years. However, the requirement of freedom from 
tuberculosis is 2 years from the depopulation of the last affected herd 
in States or zones that were previously accredited free and in which 
all herds affected with tuberculosis were depopulated, 3 years in all 
other States or zones that have depopulated all affected herds, and 3 
years in States or zones that have conducted surveillance that 
demonstrates that other livestock herds and wildlife are not at risk of 
being infected with tuberculosis, as determined by the Administrator 
based on a risk assessment conducted by the Animal and Plant Health 
Inspection Service.
    Based on recently developed tuberculosis disease models that use 
mathematical simulation to predict the occurrence and spread of 
disease, we believe it may be necessary to reevaluate our criteria for 
advancing from one State or zone classification to the next to 
determine if appropriate timeframes and prevalence levels are being 
used. Therefore, we are asking for scientific data on whether the 
timeframes and disease prevalence levels currently being used to 
classify the tuberculosis risks in States and zones are appropriate 
and, if not, what timeframes and disease prevalence levels would be 
appropriate for each classification.
    Although risk classifications are based on tuberculosis prevalence 
levels as set forth in the regulations, the regulations also provide 
for exceptions to those prevalence levels in cases where a State or 
zone has a limited number of herds. When the number of herds in a State 
or zone is less than 10,000 for modified accredited status or less than 
30,000 for modified accredited advanced status, disease prevalence may 
be based on an absolute value of 10 or 3 affected herds, respectively, 
depending on the veterinary infrastructure, livestock demographics, and 
tuberculosis control and eradication measures in the State or zone. In 
addition to comments on the timeframes and disease prevalence criteria, 
we are asking for scientific data for using different numbers of herds 
and for other approaches that will give us the same level of confidence 
that a State or zone is at the appropriate disease prevalence level for 
the risk classification.
    Finally, we are asking for comments on allowing the interstate 
movement of animals from nonaccredited areas if there are mitigating 
factors in place, and we are asking for comments on what those 
mitigating factors should include. Currently, the regulations do not 
allow cattle or bison to be moved interstate from nonaccredited States 
or zones. However, because new testing strategies and new models are 
now available that better predict infection within a State or zone and 
the ability for that infection to move out of the State or zone, we are 
inviting comments on whether interstate movement from nonaccredited 
States or zones could be allowed under certain conditions without an 
undue risk of the spread of tuberculosis and what those conditions 
might be.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
spread of tuberculosis in the United States. Under these circumstances, 
the Administrator has determined that prior notice and opportunity for 
public comment are contrary to the public interest and that there is 
good cause under 5 U.S.C. 553 for making this rule effective less than 
30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive regarding this 
rule's reclassification of the State of Texas and any amendments we are 
making to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review 
process required by Executive Order 12866.
    Prior to this rule, the majority of Texas was listed as an 
accredited-free zone, and the remaining portion was listed as a 
modified accredited advanced zone. Under this rule, the entire State of 
Texas is reclassified as modified accredited advanced.
    The 1997 Census of Agriculture reports that there are 144,354 farms 
in Texas with cattle and calves. Statistics on the number of farms in 
Texas with bison were not available, but the number is believed to be 
very small. While it can be assumed that the majority of these farms 
are located within the former accredited-free zone that encompassed 
most of Texas, the number of farms that move animals interstate is 
unknown. However, cattle operators commonly move their animals 
interstate for breeding, slaughter, or feeding. In fact, approximately 
3 million cattle are moved interstate from the State of Texas each 
year.
    The Regulatory Flexibility Act requires that agencies consider the 
economic impact of their rules on small entities. The businesses 
primarily affected by this rule are cattle owners in Texas, most of 
whom are small in size. Based on data from the 1997 Census of 
Agriculture, the average cattle and calf sales per farm for all 144,354 
farms in Texas with cattle inventories was $49,650, well below the U.S. 
Small Business Administration's criterion of $750,000 in annual sales 
for businesses primarily engaged in cattle farming. Of the 144,354 
farms in Texas with cattle inventories in 1997, 92 percent had herds of 
fewer than 200 cattle.
    This rule potentially affects all cattle and bison herd owners in 
Texas who are located in the former accredited-free zone in that State 
and who move cattle or bison interstate. Herd owners affected by this 
rule will see additional interstate movement requirements and 
associated costs. The tuberculin tests for sexually intact animals and 
official identification of certain animals will result in minimal costs 
to the herd owner.
    The total cost for tuberculin tests will depend on the number of 
animals that are being moved interstate. The average cost of the 
tuberculin test is about $380 per herd. The cost per animal varies 
depending on the size of the herd. For an average-sized herd of 101 
animals, the average cost would be approximately $3.76 per animal. 
Assuming that 5 percent of the cattle in the average-sized herd are 
sexually intact animals that move interstate, tuberculin testing for 
such animals would cost approximately $19 per herd.
    Herd owner costs for applying official identification or premises 
of origin identification should also be minimal. Herd owners can apply 
approved premises of origin identification without the services of a 
veterinarian. The cost of each eartag is about 4 cents, and the cost of 
the eartag applicator is only about $12. Assuming that 10 percent of 
the cattle in the average-sized herd are

[[Page 38844]]

moved interstate and require identification, the cost of materials for 
individual identification would be only about 40 cents per herd.
    We do not expect that the increased costs stemming from this rule 
will have a significant economic impact on herd owners. The cost 
increases are small when compared to the overall value of the animals. 
According to Agricultural Statistics 2001, the average value per head 
for all 13.7 million cattle and calves in Texas was $610. The 
approximate $3.76 cost per animal for the tuberculin testing and the 4-
cent cost per animal for identification are equivalent to less than 1 
percent of the per-head value of the animals.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This interim rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are in conflict with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This rule contains no new information collection or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

List of Subjects in 9 CFR Part 77

    Animal diseases, Bison, Cattle, Reporting and recordkeeping 
requirements, Transportation, Tuberculosis.

    Accordingly, we are amending 9 CFR part 77 as follows:

PART 77--TUBERCULOSIS

    1. The authority citation for part 77 continues to read as follows:

    Authority: 21 U.S.C. 111, 114, 114a, 115-117, 120, 121, 134b, 
and 134f; 7 CFR 2.22, 2.80, and 371.4.


    2. In Sec. 77.7, paragraph (b) is revised to read as follows:


Sec. 77.7  Accredited-free States or zones.

* * * * *
    (b) The following are accredited-free zones: None.
* * * * *

    3. In Sec. 77.9, paragraphs (a) and (b) are revised to read as 
follows:


Sec. 77.9  Modified accredited advanced States or zones.

    (a) The following are modified accredited advanced States: Texas.
    (b) The following are modified accredited advanced zones: None.
* * * * *

    Done in Washington, DC, this 3rd day of June, 2002.
Bobby R. Acord,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 02-14197 Filed 6-5-02; 8:45 am]
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