Chronic Wasting Disease Herd Certification Program and Interstate Movement of Farmed or Captive Deer, Elk, and Moose, 35542-35571 [2012-14186]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Rules and Regulations]
[Pages 35542-35571]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14186]



[[Page 35541]]

Vol. 77

Wednesday,

No. 114

June 13, 2012

Part III





Department of Agriculture





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Animal and Plant Health Inspection Service





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9 CFR Parts 55 and 81





 Chronic Wasting Disease Herd Certification Program and Interstate 
Movement of Farmed or Captive Deer, Elk, and Moose; Interim Final Rule

Federal Register / Vol. 77 , No. 114 / Wednesday, June 13, 2012 / 
Rules and Regulations

[[Page 35542]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 55 and 81

[Docket No. 00-108-8]
RIN 0579-AB35


Chronic Wasting Disease Herd Certification Program and Interstate 
Movement of Farmed or Captive Deer, Elk, and Moose

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim final rule and request for comments.

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SUMMARY: We are amending a final rule, which will take effect when 
these amendments become effective, that will establish a herd 
certification program to control chronic wasting disease (CWD) in 
farmed or captive cervids in the United States. Under that rule, owners 
of deer, elk, and moose herds who choose to participate in the CWD Herd 
Certification Program would have to follow requirements for animal 
identification, testing, herd management, and movement of animals into 
and from herds. This document amends that final rule to provide that 
our regulations will set minimum requirements for the interstate 
movement of farmed or captive deer, elk, and moose but will not preempt 
State or local laws or regulations that are more restrictive than our 
regulations. This document requests public comment on that change. This 
document also amends the final rule to require farmed or captive deer, 
elk, and moose to participate in the Herd Certification Program and to 
be monitored for CWD for 5 years before they can move interstate, 
clarify our herd inventory procedures, establish an optional protocol 
for confirmatory DNA testing of CWD-positive samples, add a requirement 
to continue testing cervids that are killed or sent to slaughter from 
Certified herds, and make several other changes. These actions will 
help to control the incidence of CWD in farmed or captive cervid herds 
and prevent its spread.

DATES: Effective Date: This interim final rule is effective August 13, 
2012. Additionally, the effective date of FR Doc 06-6367, published on 
July 21, 2006 (71 FR 41682-41707), and delayed by FR Doc E6-14861, 
published on September 8, 2006 (71 FR 52983), is now August 13, 2012.
    Compliance Date: The date for complying with 9 CFR part 81 is 
delayed until December 10, 2012. The compliance date for 9 CFR part 55 
is August 13, 2012.
    Comment Date: We will consider all comments on the subject of 
preemption of State and local laws and regulations regarding chronic 
wasting disease that we receive on or before July 13, 2012. We will 
consider comments we receive during the comment period for this interim 
final rule. 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 and any amendments we are making 
to the rule.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/#!documentDetail;D=APHIS-2006-0118-0199.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. 00-108-8, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at https://www.regulations.gov/#!docketDetail;D=APHIS-2006-
0118 or in our reading room, which 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) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Dr. Patrice Klein, Senior Staff 
Veterinarian, National Center for Animal Health Programs, Veterinary 
Services, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1231; 
(301) 851-3435.

SUPPLEMENTARY INFORMATION: 

Comment Subject Area

    This interim final rule with request for comments discusses our 
decision not to preempt State and local laws and regulations that are 
more restrictive than our regulations with respect to chronic wasting 
disease, except to allow transit of deer, elk, and moose that are 
otherwise eligible for interstate movement through States with more 
restrictive laws and regulations, in section III of the Background 
section under the heading ``APHIS' Decision Not to Preempt More 
Restrictive State Requirements on Farmed or Captive Cervids With 
Respect to CWD.'' We will consider all comments that we receive on this 
subject that are received by the date and time indicated in the DATES 
section of this interim final rule with request for comments.

Background

I. Purpose of the Regulatory Action

a. Need for the Regulatory Action

    Chronic wasting disease (CWD) is a transmissible spongiform 
encephalopathy (TSE) of cervids (members of Cervidae, the deer family) 
that, as of May 2011, has been found only in wild and captive animals 
in North America and in captive animals in the Republic of Korea. First 
recognized as a clinical ``wasting'' syndrome in 1967, the disease is 
typified by chronic weight loss leading to death. Species currently 
known to be susceptible to CWD via natural routes of transmission 
include Rocky Mountain elk, mule deer, white-tailed deer, black-tailed 
deer, sika deer, and moose.
    In the United States, as of March 2012, CWD has been confirmed in 
wild deer and elk in 16 States and in 39 farmed elk herds and 15 farmed 
or captive white-tailed deer herds in 11 States. The disease was first 
detected in U.S. farmed elk in 1997. It was also diagnosed in a wild 
moose in Colorado in 2005.
    The presence of CWD in cervids causes significant economic and 
market losses to U.S. producers. Canada prohibits the importation of 
elk from Colorado and Wyoming and now requires that other cervids be 
accompanied by a certificate stating that CWD has not been diagnosed in 
the herd of origin. The Republic of Korea has suspended the importation 
of deer and elk and their products from the United States and Canada. 
The domestic prices for elk and deer have also been severely affected 
by fear of CWD.
    To help producers avoid the losses caused by CWD infection and 
risk, we determined that it was necessary to establish a program that 
would actively identify herds infected with CWD and allow producers to 
manage these herds in a way that will prevent further spread of CWD. 
Specifically, on July 21, 2006, we published a final rule in the 
Federal Register (71 FR 41682-41707, Docket No. 00-108-3; ``the July 
2006 final rule'') that established the Chronic Wasting Disease Herd 
Certification Program in 9 CFR subchapter B, part 55. (That part had 
previously contained only regulations related to the payment of 
indemnity to the owners of CWD-positive captive herds who voluntarily 
depopulate their herds.)
    Under the July 2006 final rule, owners of deer, elk, and moose 
herds who choose to participate would have to

[[Page 35543]]

follow the program requirements of a cooperative State-Federal program 
for animal identification, testing, herd management, and movement of 
animals into and from herds. The July 2006 final rule also amended 9 
CFR subchapter C by establishing a new part 81 containing interstate 
movement requirements designed to prevent the spread of CWD through the 
movement of farmed or captive deer, elk, or moose.
    After publication of the July 2006 final rule, but before its 
effective date, APHIS received three petitions requesting 
reconsideration of several requirements of the rule. On September 8, 
2006, we published a notice in the Federal Register (71 FR 52983, 
Docket No. 00-108-4) that delayed the effective date of the CWD final 
rule while APHIS considered those petitions. On November 3, 2006, we 
published another notice in the Federal Register (71 FR 64650-64651, 
Docket No. 00-108-5) that described the nature of the petitions and 
made the petitions available for public review and comment, with a 
comment period closing date of December 4, 2006. We subsequently 
extended that comment period until January 3, 2007, in a Federal 
Register notice published on November 21, 2006 (71 FR 67313, Docket No. 
00-108-6).
    We received 77 comments by that date. They were from cervid 
producer associations, individual cervid producers, State animal health 
agencies, State wildlife agencies, and others. We carefully considered 
the petitions and the public comments received in response to them.
    On March 31, 2009, we published in the Federal Register (74 FR 
14495-14506, Docket No. 00-108-7; ``the March 2009 proposed rule'') a 
proposal \1\ to amend the July 2006 final rule. We proposed to amend 
the July 2006 final rule by recognizing State bans on the entry of 
farmed or captive cervids for reasons unrelated to CWD, increasing to 5 
the number of years an animal must be monitored for CWD before it may 
be moved interstate; restricting the interstate movement of cervids 
that originated from herds in proximity to a CWD outbreak; changing 
herd inventory procedures; prohibiting the addition of animals to CWD-
positive, -suspect, and -exposed herds; requiring States to conduct 
wildlife surveillance for CWD as part of their Approved State CWD Herd 
Certification Programs; providing for optional confirmatory DNA testing 
of CWD-positive samples; and making several other changes.
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    \1\ To view the proposed rule and the comments we received, go 
to https://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0118.
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    This final rule sets an effective date for the July 2006 final rule 
and makes changes to it based on the March 2009 proposal and on the 
comments we received on that proposal.

b. Legal Authority for the Regulatory Action

    Under the Animal Health Protection Act (AHPA, 7 U.S.C. 8301 et 
seq.), the Secretary of Agriculture has the authority to issue orders 
and promulgate regulations to prevent the introduction into the United 
States and the dissemination within the United States of any pest or 
disease of livestock. The Animal and Plant Health Inspection Service's 
(APHIS') regulations in 9 CFR subchapter B govern cooperative programs 
to control and eradicate communicable diseases of livestock. The 
regulations in 9 CFR subchapter C establish requirements for the 
interstate movement of livestock to prevent the dissemination of 
diseases of livestock within the United States.

II. Summary of the Major Provisions of the Regulatory Action

    The CWD Herd Certification Program is a cooperative effort between 
APHIS, State animal health and wildlife agencies, and deer, elk, and 
moose owners. APHIS coordinates with these State agencies to encourage 
deer, elk, and moose owners to certify their herds as low risk for CWD 
by being in continuous compliance with the CWD Herd Certification 
Program standards.
    Under subchapter B of part 55, States that participate in the CWD 
Herd Certification Program must establish State programs that are 
approved by APHIS. We will approve such programs if the State:
     Establishes movement restrictions on CWD-positive, CWD-
suspect, and CWD-exposed animals, to prevent the spread of the disease, 
and requires testing of such animals.
     Conducts traceback on such animals, to determine what 
other animals may be affected.
     Requires testing of all animals that die or are killed. As 
we do not have live-animal tests for CWD, it is important to sample and 
test carcasses whenever possible to accurately evaluate the CWD risk in 
a herd.
     Maintain premises and animal identification for all herds 
participating in the CWD Herd Certification Program in the State. This 
is an integral part of being able to conduct traceback.
    Herd owners will be approved to participate under State CWD Herd 
Certification Programs if they:
     Identify each animal in their herds through approved means 
of identification and maintain a complete inventory of the herd. These 
requirements are also integral to conducting traceback. Upon request by 
APHIS or the State, owners must also allow officials to conduct a herd 
inventory to verify the records.
     Add to their herds only animals that are from herds 
enrolled in the CWD Herd Certification Program, to ensure that animals 
added to herds are of known risk.
     Maintain perimeter fencing adequate to prevent ingress or 
egress of cervids, to prevent CWD from being spread through contact 
with wild cervids.
     Report to APHIS or the State all animals that escape or 
disappear, and report to APHIS or the State all animals that die or are 
killed and make their carcasses available for tissue sampling and 
testing.
    Herds are given a status based on the date they enrolled in the 
program. Herds that do not have any CWD-infected or CWD-exposed animals 
for 5 years will be granted Certified status. (Herd owners who 
participate in State CWD Herd Certification Programs that are approved 
by APHIS will be credited for the time they have participated in such a 
program towards the 5-year requirement.) Based on current science, 5 
years of surveillance is a reasonable time period to determine whether 
the disease is present in the herd, as CWD has an incubation period. 
Thus, the movement of animals from a Certified herd poses a low risk of 
spreading CWD.
    The movement restrictions in 9 CFR part 81 therefore allow deer, 
elk, and moose from Certified herds to move interstate. They also allow 
the interstate movement of wild animals captured for interstate 
movement or release, if identified with two forms of animal 
identification, including one official identification, and if the 
source population has been documented to be low risk for CWD based on a 
surveillance program. The part also allows the interstate movement of 
animals moved for slaughter; research animals; and other animals on a 
case-by-case basis. Finally, this part includes provisions under which 
deer, elk, or moose that are eligible to move interstate may transit a 
State that bans or restricts the entry of such animals en route to 
another State.
    A detailed discussion of the provisions of 9 CFR part 55, 
subchapter B, and 9 CFR part 81 is available in the July 2006 final 
rule. This document concentrates on the changes we are making to the 
July 2006 final rule

[[Page 35544]]

subsequent to the March 2009 proposed rule and in response to comments. 
The major changes we are making are:
     The March 2009 proposal indicated that the goal of the CWD 
program was to eliminate the disease in farmed or captive cervids. We 
have now determined that our goal is to control the spread of the 
disease. The persistence of CWD in wild cervid populations and our 
current lack of knowledge about the transmission of CWD have made the 
goal of eliminating CWD from farmed or captive cervids impractical.
     Our CWD regulations will set minimum standards for State 
CWD Herd Certification Programs and for the interstate movement of 
cervids. The March 2009 proposal indicated that we would preempt State 
and local laws and regulations that were more restrictive as well. 
However, we have since decided that our regulations will not preempt 
State and local laws and regulations that are more stringent than our 
regulations, except that (as noted earlier) cervids that are eligible 
to move interstate may transit a State that bans or restricts the entry 
of such animals en route to another State. We are soliciting public 
comment on this decision, as described below under the heading ``APHIS' 
Decision Not to Preempt More Restrictive State Requirements on Farmed 
or Captive Cervids With Respect to CWD.''
     The March 2009 proposed rule included some proposed 
provisions designed to give States options to regulate CWD within the 
context of Federal preemption of State and local laws and regulations, 
such as allowing States to prohibit entry of cervids for reasons 
unrelated to CWD and because of proximity to findings of CWD in 
wildlife. We are not including those provisions in this final rule 
because they are no longer necessary given our decision on preemption.
     Because our goal is now to control the spread of CWD 
rather than to eliminate it, we are not requiring States to conduct 
surveillance for CWD in wild cervid populations or requiring States to 
prohibit the addition of animals to herds containing CWD-positive, CWD-
exposed, or CWD-suspect animals.
     Based on comments on the March 2009 proposed rule, we are 
removing an exemption in the July 2006 final rule under which Certified 
herds were not required to make animals that were sent for slaughter or 
killed on shooter operations available for testing. We are also making 
several minor changes to improve the clarity of the changes we proposed 
and of the regulations.

III. Discussion of Comments

    We solicited comments concerning the March 2009 proposal for 60 
days ending July 1, 2009. We received 78 comments by that date. They 
were from producers, researchers, and representatives of State 
governments. They are discussed below by topic.

General Opposition to the CWD Herd Certification Program

    Several commenters recommended that we withdraw the July 2006 final 
rule, rather than making changes to it as described in the proposal and 
issuing a revised final rule. These commenters stated that designing a 
Federal program for control of CWD in captive cervids is about a decade 
too late to be useful. The commenters doubted that, at this point in 
time, the Federal program as described would materially improve CWD 
control beyond what has already been achieved by the collective 
coordinated efforts of State animal health and wildlife management 
agencies. Rather, the commenters stated, options for providing Federal 
assistance to States would be most beneficial and efficient. Commenters 
also stated that, under this approach, many of the key elements of the 
Federal CWD Herd Certification Program could still be provided by APHIS 
to the States as guidance for establishing or refining their respective 
CWD control programs.
    We have determined that a voluntary Federal CWD program is 
necessary to give States from which farmed or captive cervids are moved 
interstate and herd owners who move farmed or captive cervids 
interstate the opportunity to demonstrate that they meet minimum 
standards for CWD management. These minimum standards are necessary for 
an effective CWD program. Guidelines for a CWD program, rather than 
mandatory requirements, would not be sufficient to ensure that the CWD 
program is effective.
    Accordingly, this final rule announces our intention to amend the 
July 2006 final rule and set an effective date for the amended final 
rule of August 13, 2012. The regulatory text at the end of this 
document includes the complete text of the July 2006 final rule, as 
amended by this final rule. The changes to the July 2006 final rule are 
described in the March 2009 proposed rule and the Background section of 
this document.
    We agree with the commenters that circumstances relevant to a 
Federal CWD program have changed over time, necessitating a change in 
the objective of the CWD program. In the July 2006 final rule and the 
March 2009 proposed rule, as well as all our previous CWD-related 
rules, the stated objective of the CWD program was the elimination of 
CWD from captive and farmed cervids in the United States. We have now 
concluded, however, that our CWD objective should be to establish a 
herd certification program for herd owners and States to control the 
incidence of CWD in farmed and captive cervids and prevent the 
interstate spread of CWD. We have concluded that elimination of CWD 
from farmed and captive cervids is not practical given the persistence 
of CWD in wild cervid populations and our current lack of knowledge 
about how CWD may be transmitted between wild cervid populations and 
farmed and captive cervids. The CWD Herd Certification Program will 
allow States and herd owners to monitor herds of farmed and captive 
cervids to ensure that they are at low risk for CWD, and our 
regulations in part 81 will allow only farmed or captive deer, elk, and 
moose from herds that have reached Certified status in the CWD Herd 
Certification Program, after 5 years of monitoring, to be moved 
interstate, with limited exceptions.
    A few commenters stated that the position that a Federal CWD 
program is unnecessary is in keeping with APHIS' overall intent to 
phase out regulatory efforts for ``program diseases'' in the coming 
decade.
    We assume the commenters are referring to our plans for the 
strategic future of APHIS' Veterinary Services (VS) program,\2\ in 
which we have stated that VS will increase its focus on disease 
prevention, preparedness, detection, and early response. Our plans also 
acknowledge that several major disease control and eradication programs 
are either complete or nearing completion. However, we do not 
contemplate APHIS phasing out administration of the disease control and 
eradication programs to which the commenters referred, but rather 
redirecting resources as necessary to accomplish new objectives based 
on new circumstances. We will continue to administer disease control 
and eradication programs, including the CWD Herd Certification Program.
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    \2\ For more information on this plan, see https://www.aphis.usda.gov/about_aphis/programs_offices/veterinary_services/vision_science.shtml.
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    One commenter stated that the proposed rule will fail to adequately 
control CWD in farmed or captive cervids in the United States. The 
commenter cited increases in positive tests of farmed and captive 
cervids for

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CWD and additional States in which CWD has been found in captive herds 
since December 2003, when the initial proposed rule to establish the 
CWD Herd Certification Program was published. The commenter stated 
that, if the goal of the CWD Herd Certification Program is to eliminate 
CWD from captive cervid herds, stricter controls must be in place to 
prevent further spread of the disease. For example, the commenter 
stated, it is possible for a captive cervid facility to earn Certified 
status, thus allowing animals from the herd to be moved interstate, 
without testing a single animal for CWD.
    The suspension of the effective date of the July 2006 final rule 
means that States and herd owners have not been required to comply with 
its provisions. The CWD Herd Certification Program we are establishing 
imposes new controls on the interstate movement of deer, elk, and 
moose. The requirements for interstate movement and herd certification 
in the July 2006 final rule, with the modifications discussed in the 
March 2009 proposal and in this document, will help prevent the spread 
of CWD.
    With respect to the commenter's specific concern regarding the July 
2006 final rule, Sec.  55.23(b)(3) requires herd owners to inform an 
APHIS or State representative regarding all animals that die (including 
animals killed on premises maintained for hunting and animals sent to 
slaughter) and to make the carcasses of the animals available for 
tissue sampling and testing in accordance with instructions from the 
APHIS or State representative. We expect that we will test all samples 
that will be provided to us. If a herd had no mortality for 5 years, 
which is unlikely, it could reach Certified status without having 
animals tested. However, given our current knowledge about the biology 
of CWD, there is a low risk that CWD will be present in a herd after 5 
years of monitoring with no mortality. In addition, continued 
surveillance will be required for any Certified herd to retain its 
Certified status.

APHIS' Decision Not To Preempt More Restrictive State Requirements on 
Farmed or Captive Cervids With Respect to CWD

    In the Background section of the July 2006 final rule, under the 
heading ``Executive Order 12988,'' we stated that the July 2006 final 
rule preempted all State and local laws and regulations that were in 
conflict with it. Our intent was to establish uniform requirements that 
would apply to the interstate movement of farmed or captive cervids to 
each of the States.
    The petitions we received and made available with the November 2006 
notice indicated strong opposition to Federal preemption of State 
restrictions on farmed and captive cervids with respect to CWD. We 
considered the petitions, and the comments on the petitions, in 
developing the proposed rule we published in the Federal Register on 
March 31, 2009. We also received several comments on the March 2009 
proposal addressing whether the Federal CWD requirements should preempt 
inconsistent State requirements.
    As discussed earlier, we have now concluded that our objective with 
respect to CWD should be to establish a herd certification program for 
herd owners and States to control the incidence of CWD in farmed and 
captive cervids and prevent the interstate spread of CWD, as 
elimination of CWD from farmed and captive cervids is not practical. 
Accordingly, these CWD regulations will set mandatory minimum 
requirements for interstate movement of farmed or captive cervids with 
respect to CWD; they will not preempt State and local laws and 
regulations on CWD in farmed or captive cervids when those laws and 
regulations are more restrictive than the Federal regulations. (The 
only exception is with respect to the movement of farmed or captive 
cervids through a State, as discussed later in this document.)
    This approach will ensure that there are minimum requirements 
applicable to the interstate movement of farmed or captive cervids, 
while also allowing State and local laws, regulations, and policies to 
impose additional requirements on farmed or captive cervids as 
necessary to address local needs. We believe this approach is 
appropriate for CWD, where we have limited methods for diagnosing the 
disease and preventing its spread and where the goal of the program is 
to control, rather than eradicate, the disease.
    Several commenters focused on the issue of State wildlife 
management authority. These commenters stated that States must retain 
authority to regulate and manage wildlife resources more stringently if 
they feel that risks are not adequately mitigated by the Federal 
program. The commenters specifically cited banning movement of captive 
cervids into a State for any reason, including risks related to CWD.
    The CWD Herd Certification Program seeks to control CWD in farmed 
or captive cervids. We are not imposing requirements on States with 
respect to management of wild cervid populations, except when those 
populations could pose a disease risk to farmed or captive cervids, 
such as the translocation of wild cervids from wild populations that 
have not been assessed for CWD. As long as they do not affect farmed or 
captive cervids, State and local laws and regulations related to 
management of wild cervid populations are not affected by the CWD 
regulations. The only provision of the July 2006 final rule that 
relates to wild cervids is a requirement that animals captured from 
wild populations for interstate movement and release be accompanied by 
a certificate documenting the source population to be low risk for CWD, 
based on a CWD surveillance program that is approved by the State 
government of the receiving State and by APHIS. This requirement is 
directly related to and necessary for preventing the introduction of 
CWD into farmed or captive cervid populations, although it provides 
some protection for wild cervid populations as well.

    Note: The July 2006 final rule contained requirements in Sec.  
81.3(b) for interstate movement of captive cervids that were 
captured from free-ranging populations. In this final rule, we are 
changing the description of these populations to ``wild 
populations,'' as farmed or captive cervids may range freely on 
their premises without being considered ``free-ranging'' for the 
purposes of the regulations. We are also replacing references to 
``free-ranging'' in the definitions of farmed or captive in 
Sec. Sec.  55.1 and 81.1 with references to ``wild,'' changing the 
order of the wording in the phrase ``captured for interstate 
movement and release from a wild population'' in Sec.  81.3(b) to 
``captured from a wild population for interstate movement and 
release,'' and clarifying Sec.  81.3(b) to indicate that it requires 
a CWD surveillance program for wild cervid populations in order to 
allow the interstate movement of cervids captured from wild 
populations. These changes are intended to improve the clarity of 
the regulations. Discussions of wild cervid populations in the 
remainder of the Background section of this rule reflect this 
change.

    Several commenters also expressed concern regarding classifying 
farmed or captive cervids as livestock. These commenters noted that 
APHIS' authority to prevent, control, or eradicate diseases, pursuant 
to the AHPA, specifically refers to livestock. These commenters pointed 
out that that the legal definition of livestock is highly variable 
among States; many States do not define captive native species as 
``livestock,'' since livestock is not always within the sole 
jurisdiction of their fish and wildlife agencies. Thus, the commenters 
stated, in some instances captive cervids of native species may not 
fall within the Federal definition of livestock. The commenters

[[Page 35546]]

recommended removing the references to livestock in the regulations or 
yielding to a State's definition when referring to cervids in this way.
    We appreciate the commenters' concerns. Clearly, farmed and captive 
cervids are not traditional livestock; they are often referred to as 
alternative livestock. We understand that State fish and wildlife 
agencies in many States are responsible for the management of all 
cervids within their State, not just those that are wild but also those 
held on farms or in other captive situations. Nonetheless, these 
agencies may not have experience working within the context of a 
program designed to control an animal disease in farmed or captive 
animal populations.
    The AHPA charges the U.S. Department of Agriculture with the 
responsibility of controlling or eradicating any pest or disease of 
livestock, and defines ``livestock'' broadly as ``all farm-raised 
animals.'' This means that all farmed or captive cervids fall under the 
AHPA definition of livestock. Under this authority, we have determined 
that it is appropriate to establish requirements for the interstate 
movement of farmed or captive cervids to help prevent the spread of 
CWD. To the extent that State fish and wildlife agencies are 
responsible for farmed or captive cervids in their States, they will 
need to cooperate with APHIS in the administration of the CWD 
regulations. We will work with State fish and wildlife agencies to help 
them to understand their responsibilities and to ensure that we can 
cooperate well. It is important to reiterate that States retain the 
authority to manage fish and wildlife populations, including wild 
cervids, under this final rule.
    Several commenters urged the adoption of regulations that would 
preempt State and local laws and regulations on farmed or captive 
cervids with respect to CWD. Commenters noted that the movement of 
farmed and captive deer and elk has been extremely difficult because of 
a variety of different rules at the State level, with some States 
banning the movement of farmed or captive deer and elk into or through 
their States altogether.
    We understand the commenters' concerns with regard to facilitating 
the interstate movement of farmed and captive cervids. For the reasons 
set forth below, however, we have decided that our CWD regulations will 
not preempt State and local laws and regulations that are more 
restrictive than our regulations.
    First, while the herd certification program and the requirements 
for interstate movement of farmed and captive cervids in the July 2006 
final rule, as amended by this document, are supported by the best 
available science, we recognize that the methods for mitigating the 
disease are evolving; our current methods are limited by the current 
state of scientific knowledge. As such, it is not possible to create a 
uniform set of proven mitigations for CWD. We have determined that, in 
such circumstances, States should be able to implement more restrictive 
laws and regulations if they determine such laws and regulations to be 
appropriate.
    For example, one commenter stated that States should be able to 
impose more restrictive requirements or prohibitions on the interstate 
movement of farmed or captive cervids because there is currently no 
practical live-animal test validated for white-tailed deer, in contrast 
to other diseases mentioned in the March 2009 proposed rule, such as 
tuberculosis and brucellosis. The lack of a live-animal test creates 
uncertainty about the disease-free status of herds, or animals moved 
interstate from herds.
    We agree the lack of a live-animal test for CWD creates 
uncertainty. Our approach to establishing a greater degree of certainty 
involves monitoring all herds enrolled in the CWD Herd Certification 
Program for at least 5 years before allowing animals from those herds 
to move interstate. This approach uses surveillance over time to 
increase the certainty that animals from a herd are low risk; 5 years 
of testing all cervids that die in a herd without finding a CWD-
positive animal provides substantial assurance that CWD is not present 
in the herd. However, surveillance in the CWD Herd Certification 
Program does not provide the same level of certainty with respect to 
the disease status of an individual animal that a live-animal test 
could provide. Allowing States to impose more restrictive requirements 
than our requirements acknowledges that this uncertainty exists.
    Another commenter stated that the industry in the commenter's State 
considers that State's CWD program to be a benchmark after which other 
States' programs could be modeled. The commenter stated that industry 
recognizes that a Federal rule is needed for interstate movement of 
registered animals, but expressed concern that not allowing the State 
to impose stricter requirements in some situations might not be 
appropriate.
    We agree that States can serve as laboratories for different 
regulatory approaches. In the uncertain scientific environment 
surrounding CWD, we welcome any additional evidence we can gather about 
the effectiveness of regulatory approaches. Our decision to allow 
States to impose requirements that are more restrictive than our 
regulations will allow States to create and experiment with regulatory 
programs.
    The other reason to allow States to develop and enforce laws and 
regulations that are more restrictive than our regulations is, as we 
noted above, inherent in the fact that our program objective has 
changed to reflect changes in conditions. When the objective of a 
program is to eliminate a disease, we impose requirements that are 
sufficient to achieve that objective, based on the best available 
science. If a State were to impose requirements that are more 
restrictive than our requirements in such a case, the additional State 
requirements would impede interstate commerce without advancing the 
objective of the program.
    However, the objective of our regulations is now to assist in 
controlling CWD in farmed and captive cervids, rather than eliminating 
CWD in farmed and captive cervids. Eliminating CWD from farmed and 
captive cervids is not practical given the persistence of CWD in wild 
cervid populations and our current lack of knowledge about how CWD may 
be transmitted between wild cervid populations and farmed and captive 
cervids. Other gaps in our scientific knowledge we have about CWD also 
impair our ability to achieve eradication, including the lack of 
certainty regarding the disease status of individual live animals, the 
lack of knowledge regarding how the disease is transmitted between wild 
and farmed or captive cervid populations, and our lack of knowledge 
regarding effective cleaning and disinfection measures for premises on 
which CWD has been found. (For example, we do not know any cleaning and 
disinfection measures that allow us to effectively address the 
persistence of CWD in substrates.)
    For these reasons, the CWD Herd Certification Program and our 
interstate movement restrictions are designed to prevent the spread of 
CWD, rather than to eliminate it. Allowing States to establish more 
restrictive laws and regulations on farmed and captive cervids 
recognizes that States may want to establish a higher level of 
protection against the disease than the Federal program is designed to 
provide.
    In this final rule, we are also establishing provisions for the 
interstate transportation of farmed or captive cervids through States 
in response to comments. These provisions will preempt State and local 
laws and regulations in addition to or different

[[Page 35547]]

than the requirements set forth in this final rule. These provisions 
allow owners of farmed or captive cervids (including animals captured 
from wild populations for interstate movement and release) to move 
those cervids, without unloading and while en route to another State, 
through States that prohibit or restrict the entry of farmed or captive 
cervids into their State.
    Specifically, 15 commenters asked us to address the issue of State 
bans or restrictions on the interstate movement of farmed or captive 
cervids through a State to another State of destination. The commenters 
stated that States should not have the right to ban interstate movement 
through a State to another State when the farmed or captive cervids 
being moved meet the entry requirements of the destination State. Ten 
of the commenters specifically recommended defining ``entry'' and 
``import'' as being received into a specific State and excluding from 
State regulation any movement through States that are not receiving 
farmed or captive cervids.
    We agree with these commenters that the regulations should provide 
for movement through a State, even if the State bans movement of farmed 
or captive cervids into the State. While, as noted, our scientific 
knowledge about CWD is limited, the scientific knowledge we have 
suggests that CWD is not highly infectious. In general, the movement of 
animals through a State without unloading poses a low risk of spreading 
CWD, and the regulations in part 81 ensure that the animals moved 
interstate will themselves present a low risk of being infected with 
CWD.
    Not providing for movement through States that ban or further 
restrict the entry of farmed or captive deer, elk, or moose would also 
raise several issues. The rerouting required to avoid such States may 
make transportation of farmed or captive cervids economically 
unfeasible. Even if such transportation is economically feasible, the 
additional time necessary to traverse a lengthy route may raise animal 
health or welfare issues for the cervids being transported; the cervids 
would need regular water, feed, and rest, as required for all livestock 
under the Twenty-Eight Hour Law (49 U.S.C. 80502). Captive cervids that 
needed to be offloaded for such purposes would not be easy to confine 
and to reload onto a conveyance. Given the low risk associated with 
this type of movement, we have determined that it is appropriate to 
provide for the movement of farmed or captive cervids through States 
and localities whose laws or regulations on the movement of captive 
cervids are more restrictive than the regulations in part 81.
    In this final rule, a new Sec.  81.6 indicates that State and local 
laws and regulations that are more restrictive than the regulations in 
part 81 are not preempted by part 81, except for the regulations 
regarding interstate movement through a State to another State in Sec.  
81.5.
    Section 81.5 sets out the following provisions for farmed or 
captive deer, elk, or moose to move through a State or locality whose 
laws or regulations are more restrictive than those in part 81 to 
another State:
     The farmed or captive deer, elk, or moose must be eligible 
to move interstate under Sec.  81.3. This section requires animals that 
move interstate to be from Certified herds, to be from wild populations 
that have been documented to be low risk for CWD, or to be moved 
directly to slaughter. It also provides for movement of research 
animals under permit, which will only be issued if the movement 
authorized will not result in the interstate dissemination of CWD. 
Thus, movement of animals under Sec.  81.3 already presents a low risk 
of spreading CWD, even without considering the low risk associated with 
the pathway of transportation through a State.
     The farmed or captive deer, elk, or moose must meet the 
entry requirements of the destination State listed on the certificate 
or permit accompanying the animal.
     Except in emergencies, the farmed or captive deer, elk, or 
moose must not be unloaded until their arrival at their destination. 
Emergencies might include a breakdown of the vehicle transporting the 
deer, elk, or moose or weather conditions that make it impossible or 
extremely unsafe for a vehicle to continue along its scheduled 
itinerary.
    We recognize that the decision not to preempt State and local laws 
and regulations with respect to CWD, except for deer, elk, and moose 
that are moved through a State, represents a change in our preemption 
policy, as expressed in the July 2006 final rule and the March 2009 
proposed rule. We believe the change is appropriate for the reasons 
discussed above. However, because the public has not previously had a 
chance to comment on this change in policy, we are requesting comment 
on our new policy, as well as the specific provisions of Sec.  81.5. We 
will consider comments we receive during the comment period for this 
interim final rule. 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 and any amendments we are making 
to the rule.
    Although we may make changes based on comments, the rest of the 
Background section of this document assumes that the preemption policy 
described above will continue to be effective.

Changes in the March 2009 Proposed Rule That Are Now Unnecessary

    Because the objective of the CWD program have changed from 
elimination of the disease in farmed and captive cervids to control of 
the spread of the disease, several changes we proposed in March 2009 
are no longer necessary:
    Allowing States to prohibit entry of cervids for reasons unrelated 
to CWD. As noted earlier, we proposed to add to the July 2006 final 
rule a new Sec.  81.5 indicating that State laws and regulations 
prohibiting the entry of farmed or captive cervids for reasons 
unrelated to CWD are not preempted by 9 CFR part 81. Since we are 
allowing States to prohibit the entry of farmed or captive cervids for 
reasons related to CWD, except with respect to movement through a 
State, the proposed section is no longer necessary.
    Allowing States to prohibit entry of farmed or captive cervids 
based on proximity to CWD in wild deer, elk, or moose. We proposed to 
add to the July 2006 final rule provisions allowing States to refuse 
entry to farmed or captive cervids that originated from premises within 
25 miles (40 km) of a federally or State-identified case of CWD in wild 
deer, elk, or moose, or within 25 miles of an area, as defined by APHIS 
and the State, where CWD has become established in wild deer, elk, or 
moose. As States may now impose such requirements, as well as other 
additional requirements, under Sec.  81.6, we are not including these 
changes in this final rule.
    Requiring ongoing wildlife surveillance as part of an Approved 
State CWD Herd Certification Program. In the July 2006 final rule, 
paragraph (a) of Sec.  55.23 lists aspects of a CWD program that the 
Administrator will evaluate when determining whether a State CWD 
program qualifies as an Approved State CWD Herd Certification Program. 
We proposed to add to this list that the Administrator will evaluate 
whether the State conducts monitoring and surveillance activities to 
estimate geographic distribution of CWD in the State. This requirement 
was included to ensure that States had data allowing them to certify 
that farmed or captive cervids moved interstate did not originate from 
premises in proximity to a known CWD outbreak, to support the

[[Page 35548]]

proximity provisions in the March 2009 proposed rule. Since we are not 
including those provisions in this final rule, specifically requiring 
that States conduct monitoring and surveillance activities to estimate 
geographic distribution of CWD in the State is no longer necessary.
    However, we continue to encourage States to conduct monitoring and 
surveillance for CWD in wildlife populations. Knowledge of the 
geographic distribution of CWD in wildlife that is generated through 
wildlife surveillance is valuable to both wildlife and domestic animal 
managers. The information helps both groups assess risk of animal 
movement and helps in other disease prevention and management planning.
    In addition, for deer, elk, or moose captured from a wild 
population for interstate movement and release, the regulations in 
Sec.  81.3(b) require the certificate accompanying those animals to 
document that the animals are from a source population that is low risk 
for CWD, based on a CWD surveillance program that is approved by the 
State Government of the receiving State and APHIS. States that want to 
facilitate such movement will need to have a CWD surveillance program 
in place for their wild populations.
    In the past, APHIS has supported surveillance for CWD in wild 
cervid populations through cooperative agreements with State wildlife 
agencies and tribes. We hope that we will be able to continue to 
support wildlife surveillance. We anticipate that APHIS will receive 
flat or declining budgets for the next several years, which would 
likely substantially limit our support. Nonetheless, we will work with 
State wildlife agencies and tribes to develop more efficient and 
effective surveillance strategies for the future.
    Not allowing herds to participate in the CWD Herd Certification 
Program based on proximity to CWD in wild deer, elk, or moose. In the 
July 2006 final rule, paragraph (a) of Sec.  55.22, ``Participation and 
enrollment,'' sets out procedures for owners to enroll and participate 
in the CWD Herd Certification Program. In the March 2009 proposed rule, 
we proposed to amend Sec.  55.22(a) to state that an application for 
participation may be denied if APHIS or the State determines that the 
applicant's herd was established after a subsequent final rule becomes 
effective on a premises within 25 miles of a federally or State-
identified case of CWD in wild deer, elk, or moose, or within 25 miles 
of an area, as defined by APHIS and the State, where CWD has become 
established in wild deer, elk, or moose. The requirement was proposed 
in conjunction with the other proximity provisions that we are not 
including in this final rule. In the proposal, we also stated that, 
while the level of risk associated with maintaining a CWD herd in 
proximity to known occurrences of CWD in wild cervids is unknown, the 
proposed prohibition on establishing new herds in proximity to CWD 
occurrences in the wild would add to the effectiveness of CWD control.
    However, commenters presented information indicating that the 25-
mile distance was not necessarily enough to mitigate the risk of 
exposure to CWD, given the distribution and variation in home ranges of 
wild deer, elk, and moose, meaning that the standard might not 
effectively mitigate whatever risk may exist. Given that the primary 
impetus for potentially denying the application for participation of a 
herd in proximity to known occurrences of CWD in wild herds was to 
support the other proximity provisions in the March 2009 proposed rule, 
and given the information presented by the commenters, we are not 
including this provision in the final rule. However, under this final 
rule, States may choose to address the risk associated with premises in 
areas in proximity to CWD cases or areas where CWD has become 
established by placing their own restrictions on the establishment of 
premises in such areas, based on local conditions.
    Finally, one commenter opposed preemption and specifically stated 
that States should be allowed to require written approval from the 
State veterinarian for any consignment of deer, elk, or moose to enter 
the State before it is moved interstate from its premises of origin. 
Another commenter generally asked us to require the State agency 
overseeing captive cervids in the receiving State to be notified when 
captive cervids are moved to a State. Our decision to allow States to 
impose additional requirements on the entry of captive cervids beyond 
those in our regulations allows for States to keep such requirements in 
place, or to impose them, as they determine to be necessary.

Overlap of Federal and State Requirements

    Two commenters stated that the March 2009 proposed rule included 
various provisions for inspections and certification requirements that 
are duplicative of their State's rules and regulations. The commenters 
asked whether the APHIS requirements are in addition to State 
regulations or if the State's current practices would satisfy the 
requirements. The commenters expressed concern about the burden that 
could result if the APHIS requirements were being imposed in addition 
to State requirements.
    Another commenter requested that APHIS consider exemptions from 
Federal requirements for States which, now or in the future, develop 
comprehensive, risk-based regulatory CWD policies pertaining to 
confined cervid populations.
    Several States already enroll deer and elk herd owners in programs 
based on these principles. We believe that it is better to build a 
Federal program that recognizes State activities than to replace them 
with a strictly Federal program. Therefore, the July 2006 final rule 
allows APHIS to recognize State regulations and procedures as 
satisfying APHIS requirements. We believe the States that have or are 
developing CWD programs can readily incorporate our proposed minimum 
criteria with few or no changes to State programs.
    Specifically, in Sec.  55.23, paragraph (a) sets out the elements 
necessary for a State to have an Approved State CWD Herd Certification 
Program. This paragraph sets general standards but does not prescribe 
the means for meeting them. If a State's CWD program meets the minimum 
requirements in Sec.  55.23(a), we do not impose any further 
requirements on the State. Thus, State practices can satisfy APHIS 
requirements under the regulations.
    It is not necessary to exempt States that have or develop 
comprehensive, risk-based CWD regulatory policies from Federal 
requirements; such a regulatory policy would be recognized under Sec.  
55.23(a) as an Approved State CWD Herd Certification Program. An 
Approved State CWD Herd Certification Program allows herds in that 
State that reach Certified status to move their animals interstate. 
Under this final rule, any farmed or captive cervids moved interstate 
will have to come from an Approved CWD Herd Certification Program, with 
limited exceptions.

Definition of Official Animal Identification

    The July 2006 final rule included in Sec. Sec.  55.1 and 81.1 a 
definition of official animal identification. In the March 2009 
proposed rule, we proposed to amend this definition to indicate that 
the CWD program allows the use of either the eight-character or nine-
character identification number format for cervids.
    One commenter stated that approval for the animal identification 
tag in the commenter's State has been requested several times since 
2008, without

[[Page 35549]]

confirmation that the request has been received or is being considered. 
The commenter noted that the tag in question is a nine-character tag. 
Another commenter expressed general concern that our approval of State 
tags has not been forthcoming.
    Until the publication of this final rule, there has been no CWD 
Herd Certification Program in place in the regulations, and we have 
been concentrating on determining the appropriate objectives and 
provisions of the overall program. We plan to evaluate State animal 
identification for use as official identification as part of the CWD 
Herd Certification Program implementation process. We will reach out to 
these commenters to ensure that we are addressing their concerns, and 
we invite others who may have similar concerns to contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Definition of National Uniform Eartagging System

    The definition of official animal identification in the July 2006 
final rule referred to the National Uniform Eartagging System as one of 
three systems of nationally unique animal identification that fulfilled 
the requirements of the definition. In the March 2009 proposed rule, we 
included a definition of National Uniform Eartagging System to help 
provide more information about this system, supporting the goal of 
standardizing animal identification and increasing animal traceability.
    Several commenters expressed concern that State-approved animal 
identification might not be recognized as official animal 
identification under the definition of National Uniform Eartagging 
System. These commenters stated that all State-approved official 
identification that is in use should be approved, and updates to animal 
identification systems should be required for new herds only.
    The proposed National Uniform Eartagging System definition did not 
affect the definition of official animal identification in the July 
2006 final rule. The National Uniform Eartagging System is a numbering 
system, not a tagging system. With respect to identification devices, 
animals in herds enrolled in the CWD Herd Certification Program must 
have at least two forms of animal identification attached to the 
animal, approved by APHIS. As stated above, we will evaluate State 
animal identification systems for approval as official identification 
as part of the implementation process for the CWD Herd Certification 
Program.

Definition of Premises Identification Number

    The July 2006 final rule defined premises identification number 
(PIN) in Sec. Sec.  55.1 and 81.1 as a unique number assigned by a 
State or Federal animal health authority to a premises that is, in the 
judgment of the State or Federal animal health authority, a 
geographically distinct location from other livestock production units. 
The PIN is associated with an address or legal land description and may 
be used in conjunction with a producer's own livestock production 
numbering system to provide a unique identification number for an 
animal. The definition stated that the PIN may consist of:
     The State's two-letter postal abbreviation followed by the 
premises' assigned number; or
     A seven-character alphanumeric code, with the right-most 
character being a check digit. The check digit number is based upon the 
ISO 7064 Mod 36/37 check digit algorithm.
    The definition of official animal identification, in turn, allows 
the use of a premises-based number system in which an official PIN is 
combined with a producer's livestock production numbering system to 
provide a unique identification number.
    In the March 2009 proposed rule, we proposed to amend this 
definition by, among other things, removing the option to use the 
State's two-letter postal abbreviation followed by the premises' 
assigned number as a PIN. Under the proposed rule, PINs issued after 
the effective date of a final rule following the March 2009 proposal 
would have had to consist of the seven-character alphanumeric code with 
the characteristics described above.
    Four commenters raised concerns about this change. One stated that 
producers who use eartags numbered with a premises-based number system 
containing PINs with State two-letter postal abbreviations and unique 
identifiers can now purchase eartags from the company of their choice 
without the involvement of an accredited veterinarian. Under the 
proposed rule, the commenter stated, such purchases would have to 
involve an accredited veterinarian, which would make the system 
unnecessarily cumbersome.
    Two commenters expressed concern that all currently used tags would 
need to be replaced. These commenters stated that the State identifier 
was preferable. One stated that the State authority issuing identifiers 
can more easily add to and update the system than the Federal 
Government can. The other stated that the State identifier can be 
tracked and updated better than a Federal identifier. A third commenter 
stated that, when State identifiers are used, purchasers can easily 
identify the State of origin of an animal, and stated that tracebacks 
are better handled by State veterinarians than by searching through a 
huge grouping of animals from all States.
    It is important to note that the proposal would not have required 
any currently issued tags to be replaced; it only would have required 
that all new PINs conform to the seven-character alphanumeric standard, 
thus requiring newly issued official identification to reflect the new 
PINs. In addition, we do not agree that using the seven-character 
alphanumeric standard poses any difficulties for verification of 
origin, traceback, or modifications to the system; the seven-character 
alphanumeric standard has been in use for many years without 
encountering these problems. Finally, the changes we proposed would not 
have required producers to purchase tags from an accredited 
veterinarian.
    However, we appreciate that some States may want the flexibility to 
continue using their PIN issuance system in the future. As long as PINs 
issued by States meet the other standards in the revised definition of 
PIN, we do not anticipate any problems with allowing States to do so. 
Therefore, in this final rule, we are including the option from the 
June 2006 final rule to use a PIN that consists of the State's two-
letter postal abbreviation followed by the premises' assigned number.

Credit for Herd Participation in States Without Approved State CWD Herd 
Certification Programs

    In the July 2006 final rule, paragraph (a) of Sec.  55.22 sets out 
procedures and conditions for herd owner participation and enrollment 
in the Federal CWD Herd Certification Program. Paragraph (a)(1)(ii) 
sets out the procedures and conditions for enrollment of herds that are 
in a State that does not have an Approved State CWD Herd Certification 
Program.
    Under paragraph (a)(1)(ii)(B), if APHIS determines that the herd 
owner has maintained the herd in a manner that substantially meets the 
conditions specified in Sec.  55.23(b) for herd owners, the enrollment 
date will be the first day that the herd participated in such a 
program. However, in such cases, the enrollment date may not be set at 
a date more than 2 years prior to the date that APHIS approved 
enrollment of the herd. This type of constructed enrollment date will 
be unavailable for herds that

[[Page 35550]]

apply to enroll 1 year after the implementation of the CWD program, and 
herds that apply to enroll after that date will have an enrollment date 
of the date APHIS approves the herd participation.
    In the March 2009 proposed rule, recognizing the delays in 
implementing the CWD program, we proposed to grant an additional year 
of credit for herds that had been maintained in a manner that 
substantially meets the conditions specified in Sec.  55.23(b) for herd 
owners, for a total of 3 years' credit.
    Four commenters stated that we should allow for 5 years' credit to 
be granted to herds whose owners have maintained them in a manner that 
substantially meets the conditions specified in Sec.  55.23(b). Doing 
so would allow those herds to enter the program in Certified status and 
thus be eligible to move interstate. One commenter stated that 
providing a maximum of 3 years' credit would essentially shut down the 
industry for 2 years and that States have written rules that provide 
adequate CWD surveillance status and disease control in their captive 
cervids, allowing for the interstate movement of animals with an 
extremely low risk of CWD.
    Three commenters stated that providing only 3 years' credit for 
herd owner participation outside the context of an Approved State CWD 
Herd Certification Program discriminates against persons or farms that 
have a proactive approach to testing and recordkeeping but have a 
laggard or nonexistent CWD program in their States. These commenters 
stated that herds meeting the standards of the certification program 
for any time period should be enrolled in the Federal CWD Herd 
Certification Program on the date they began meeting such standards, as 
shown in accurate herd records.
    We appreciate the efforts of herd owners who maintain their herds 
in a manner that substantially meets the conditions specified in Sec.  
55.23(b) outside the context of a State CWD program, and we realize 
that limiting credit for such efforts to 3 years will temporarily 
prevent the interstate movement of animals from such herds until the 
herds can achieve Certified status. However, as discussed in the June 
2006 final rule, only State programs have the extensive infrastructure, 
enforcement mechanisms, and record systems that verify participation 
and support reasonable confidence that herds in these programs can 
fully meet the program requirements over long periods of time. (In 
response to the first commenter, if a State has put in place adequate 
rules for CWD surveillance and disease control, that State's CWD 
program would be eligible for recognition as an Approved State CWD Herd 
Certification Program under Sec.  55.23(a), thus allowing participating 
herds to receive 5 years' credit.)
    While individual herd owners may also devise or join non-State 
programs that meet the necessary animal identification, monitoring, and 
other requirements, and their compliance may be documented through herd 
records and animal records in various State and market records 
collections, it would be very difficult to establish with confidence 
that such herds comply with requirements over lengthy periods.
    It should also be noted that herd owners who have been practicing 
CWD control and testing measures may not necessarily meet the criterion 
for granting credit that the herd has been maintained in a manner that 
substantially meets the conditions specified in Sec.  55.23(b). We will 
individually review every application for enrollment credit under Sec.  
55.22(a)(1)(ii)(B) to determine whether credit should be granted.
    We are making two changes to provisions involving enrollment dates 
in this final rule. In the July 2006 final rule, we provided in Sec.  
55.22(a)(1)(i) for herds to receive credit for having been enrolled in 
a State program that APHIS determines qualifies as an Approved State 
CWD Herd Certification Program. We indicated that such a ``constructed 
enrollment date'' would be unavailable for herds that applied to enroll 
1 year after the effective date of the final rule.
    However, such a determination would be contingent on a State 
applying for approval of its CWD program. If a herd participated in a 
CWD program that was eventually determined to qualify as an Approved 
State CWD Herd Certification Program, but that State did not apply to 
have its program approved within 1 year of the effective date of this 
rule, the herd owner would receive no credit for participation due to 
the State's inaction, despite the herd having been maintained 
consistent with the CWD Herd Certification Program. Accordingly, we are 
removing the provision in paragraph (a)(1)(i) that limited the 
availability of constructed enrollment dates. This will allow States to 
become approved at any time after the effective date of this final 
rule; herds enrolled and in good standing in their State program will 
maintain their State enrollment date in the Federal CWD Herd 
Certification Program provided they continue to meet our requirements.
    Similarly, we are removing the provision limiting constructed 
enrollment dates in paragraph (a)(1)(ii)(B), which indicated that herds 
maintained in a manner that substantially meets the conditions 
specified in Sec.  55.23(b) would receive credit for up to 3 years of 
program participation only if they apply to enroll within 1 year after 
the effective date of this final rule. There is no reason to deny a 
herd owner credit based on the date of enrollment if the herd has been 
maintained in a manner that substantially meets the conditions 
specified in Sec.  55.23(b).
    We are also switching the order of paragraph (a) of Sec.  55.23, 
which discusses owner participation, and paragraph (b), which discusses 
State participation. As the provisions for owner participation discuss 
State participation, switching the order of these paragraphs will 
result in a more logical presentation.

Movement of Animals Into CWD-Positive, CWD-Exposed, and CWD-Suspect 
Herds

    In the July 2006 final rule, paragraph (a) of Sec.  55.23 lists 
aspects of a CWD program that the Administrator will evaluate when 
determining whether a State CWD program qualifies as an Approved State 
CWD Herd Certification Program. Paragraph (a)(4) stated that the 
Administrator will evaluate whether the State has placed all known CWD-
positive, CWD-exposed, and CWD-suspect animals and herds under movement 
restrictions, with movement of animals from them only for destruction 
or under permit. (Movement under permit could include research animal 
movement, as provided in Sec.  81.3(d) of the July 2006 final rule, or 
movement from a breeding herd to a shooter facility.)
    In the March 2009 proposed rule, we proposed to amend this 
paragraph to require that States allow no movement of animals into such 
herds. We stated that such movement affects the CWD indemnity program, 
which makes indemnity available for eligible animals based on the 
inventory at the time the movement restrictions are imposed. An 
increase in the size of a herd under restriction due to CWD also causes 
a corresponding increase in the program resources devoted to the herd, 
and in the amount of work for Federal and State representatives working 
with the herd. For instance, if animals from several additional herds 
are added to a CWD-exposed or CWD-suspect herd that is later found 
positive for CWD, those additional herds must also be evaluated during 
traceback as possible sources of CWD. Also, increasing the herd size 
potentially increases the total number of

[[Page 35551]]

infected animals, and the risk of CWD spread (e.g., more animals means 
more opportunities for an animal to escape confinement).
    Several commenters stated that owners of some CWD-positive, CWD-
exposed, or CWD-suspect herds that are part of hunting operations have 
in the past added animals to their herds and need to continue adding 
animals in order to remain in business. These commenters stated that 
prohibiting movement of farmed or captive cervids to these farms would 
require these farms to breed all their animals, which in turn would 
require increasing the density of their cervid populations, to provide 
for both breeding cows and their male offspring. This would greatly 
increase the cost of doing business for these herds.
    A few owners of such herds stated that they would be put out of 
business if they could not add animals to their herds. One expressed 
concern that meat producers might be affected by such a restriction as 
well.
    Two commenters expressed concern that Certified herds might lose a 
valuable business opportunity if sales to herds with CWD-positive, CWD-
exposed, and CWD-suspect animals were prohibited.
    With respect to traceback, two commenters stated that epidemiologic 
investigations could be conducted from herds containing CWD-positive, 
CWD-exposed, or CWD-suspect animals in the same way that they are 
conducted to and from other herds.
    With respect to transmission from the facility containing the CWD-
positive, CWD-positive, CWD-exposed, or CWD-suspect animals, one 
commenter stated that State herd plans implemented at such facilities 
typically require double fences and double barriers designed to prevent 
contact between the farmed or captive cervids in the facility and wild 
cervids. Another commenter stated that the risk associated with escape 
of animals from a large herd containing CWD-positive, CWD-exposed, or 
CWD-suspect animals does not change when animals are added to that 
herd.
    With respect to indemnity, three commenters suggested that animals 
introduced into herds containing CWD-positive, CWD-exposed, or CWD-
suspect animals should not be eligible for indemnity. Another commenter 
suggested that we allow herds to apply for indemnity only within a 
certain timeframe following the identification of a CWD-positive, CWD-
exposed, or CWD-suspect animal from the herd.
    Based on these comments, we are not including this proposed change 
in this final rule. Our intent is to provide flexibility in the 
regulations to allow the operations described by commenters to remain 
economically viable. However, we note that, under this final rule, 
States will be allowed to restrict or prohibit the addition of animals 
to herds containing CWD-positive, CWD-exposed, or CWD-suspect animals. 
We also note that, when paying indemnity for a whole herd, we only make 
indemnity available for the animals that were part of the herd at the 
time we confirm the CWD diagnosis that leads us to pay indemnity for a 
herd.
    We agree that epidemiologic investigations can be conducted from 
and to animals added to herds containing CWD-positive, CWD-exposed, or 
CWD-suspect animals, in the same way epidemiologic investigations are 
conducted in other circumstances. However, the owners of Certified 
herds need to be aware that selling animals to herds containing CWD-
positive, CWD-exposed, or CWD-suspect animals (or selling to a third 
party who may sell to such herds) increases their risk of being linked 
to CWD-positive animals and herds. Owners of Certified herds that sell 
animals to herds containing such animals need to make sure that they 
have accurate, complete, and up-to-date inventories and records. 
Without such inventories and records, it will be difficult to determine 
with reasonable confidence whether a Certified herd was a source of 
infection, which could result in movement restrictions being placed on 
that herd and the suspension or loss of the herd's status in the CWD 
Herd Certification Program. We will work with herd owners and States to 
ensure that all herd owners are aware of the type of information we 
need to facilitate successful epidemiological investigations.
    With respect to additions to herds containing CWD-positive, CWD-
exposed, or CWD-suspect animals increasing the density of the herd and 
therefore increasing the risk of spreading CWD to neighboring or 
surrounding populations, we agree that there are mitigations available 
for this risk, such as the double fencing that the commenters cite. For 
herds that are enrolled in the CWD Herd Certification Program, we would 
require such mitigations to be contained in a herd plan. Again, under 
this final rule, States will have the option to require such 
mitigations when animals are moved into herds containing CWD-positive, 
CWD-exposed, or CWD-suspect animals. States can also ban such movement 
altogether.

Herd Inventories

    In the July 2006 final rule, paragraph (b) of Sec.  55.23 lists 
responsibilities of herd owners who enroll in the CWD Herd 
Certification Program. Paragraph (b)(4) describes requirements for herd 
recordkeeping and annual inventories. Among other things, paragraph 
(b)(4) requires the owner to allow an APHIS employee or State 
representative access to the premises and herd, upon request, to 
conduct an annual physical herd inventory with verification reconciling 
animals and identifications with the records maintained by the owner. 
The owner must present the entire herd for inspection under conditions 
where the APHIS employee or State representative can safely read all 
identification on the animals. The owner will be responsible for 
assembling, handling and restraining the animals and for all costs 
incurred to present the animals for inspection.
    In response to comments on the July 2006 final rule, we proposed in 
March 2009 to make changes to the annual inventory requirements to 
address their practicality. The changes we proposed were intended to 
clarify our intention to conduct an actual physical inventory of 
assembled animals when an APHIS employee or State representative finds 
it to be needed for program purposes. However, an actual physical 
inventory is not always necessary.
    We proposed to indicate that the APHIS employee or State 
representative may order either an inventory that consists of review of 
herd records with visual examination of an enclosed group of animals or 
a complete physical herd inventory with verification to reconcile all 
animals and identifications with the records maintained by the owner. 
In the latter case, we proposed to require the owner to present the 
entire herd for inspection under conditions where the APHIS employee, 
State representative, or accredited veterinarian can safely read all 
identification on the animals. The proposed rule indicated that 
inventory of a herd would be conducted no more frequently than once per 
year, unless an APHIS employee, State representative, or accredited 
veterinarian determines that more frequent inventories are needed based 
on indications that the herd may not be in compliance with CWD Herd 
Certification Program requirements.
    Ten commenters opposed removing the requirement for an annual 
physical herd inventory. Some cited specific issues. Two cited past 
experience in inspecting farmed or captive cervid herds as indicating 
that, without annual physical inspections, it is difficult to ensure 
that herds are in compliance.

[[Page 35552]]

One stated that in the absence of annual inspections, recordkeeping 
issues escalate rapidly. The other stated that we should require two 
inspections per year, one physical and one nonphysical inventory.
    Another commenter stated generally that the physical inventory 
requirement will help to ensure that adequate records are maintained, 
which will be vital in doing any necessary trace when an outbreak of 
CWD in a captive cervid herd occurs.
    Another commenter stated that, when two of the acceptable forms of 
unique identification that may be used include microchips and tattoos, 
there can be no substitute for handling the animals if their true 
identity is to be verified.
    The provisions we proposed give APHIS employees and State 
representatives the ability to require an annual complete physical herd 
inventory. The proposed provisions simply provide for an inventory of 
records as another option if no changes in the circumstances of a 
captive cervid herd indicate that a complete physical herd inventory is 
necessary. If an inventory indicates that a specific herd is not 
complying fully with the requirements of the program, the proposed 
regulations allow for more frequent physical inventories, at the 
discretion of APHIS employees and State representatives.
    We have determined that a review of herd records will be adequate 
for an annual inventory, assuming that the herd owner maintains 
adequate records and that there have been no major changes in the 
composition of the herd. In addition, three commenters stated that 
physical inventories impose a significant financial impact on 
producers, suggesting that, to the extent possible, complete physical 
herd inventories should be conducted no more often than necessary.
    Under this final rule, States have the option of requiring more 
frequent physical inventories for all herds in their States.
    One commenter stated that a complete physical herd inventory should 
be required only when there is sufficient reason to expect that poor 
records are being kept.
    We disagree. Although poor recordkeeping would be one reason we 
might require a complete physical herd inventory, there are other 
reasons as well. For example, if the facility containing the herd had 
experienced a fence breach, we might conduct a physical inventory. 
Large movements of animals in or out of the herd may result in enough 
uncertainty with respect to recordkeeping to warrant a physical 
inventory. Finally, physical inventories should be performed at 
intervals of no more than 3 years in order to ensure that recordkeeping 
is accurate. There may be other reasons to perform physical inventories 
as well.
    In the March 2009 proposed rule, we stated in the Background 
section that complete physical herd inventories would usually be 
several years apart; we did not propose to include any provisions 
regarding the frequency of physical inventories in the regulatory text. 
To communicate our expectations more clearly, we are adding in this 
final rule a requirement that a complete physical herd inventory be 
performed for all herds enrolled in the CWD Herd Certification Program 
no more than 3 years after the last complete physical herd inventory 
for the herd.
    In the Background section of the proposed rule, we stated that a 
physical assembly would be required at the time a herd is enrolled in 
the Federal-State cooperative CWD program, in order to provide a 
reliable baseline record for the herd's participation. Several 
commenters asked questions regarding whether inventories or inspections 
required by States could satisfy the requirement for an initial 
complete physical herd inventory. Twelve commenters stated that an 
initial physical inventory should only be required for those herds 
entering the CWD program that do not have a baseline record already on 
file with their State regulatory agency. Another commenter stated that 
it seems redundant and costly to require a physical inventory if a herd 
is already enrolled in a State CWD program. Another commenter stated 
that the requirement for an initial physical inventory should apply to 
new breeders only and not to existing breeders. One commenter asked 
whether herds that are enrolled in a compliant State CWD Herd 
Certification Program but have never had a physical inventory need to 
have a physical inventory done retroactively.
    In order to provide a reliable baseline record for the herd's 
participation, a herd on which a complete physical herd inventory had 
never been performed would need to undergo a physical inventory before 
beginning participation in the Federal CWD Herd Certification Program. 
However, we would accept a complete physical herd inventory performed 
by an APHIS employee, State representative, or accredited veterinarian 
not more than 1 year before the enrollment date of the herd as 
fulfilling the requirement for an initial physical inventory. Such 
inventories might be performed as part of an official herd test for 
tuberculosis or brucellosis, or as part of a State CWD Herd 
Certification Program.
    We are making two changes related to this issue. To make our 
expectations clear, we are indicating in the regulations that a 
complete physical herd inventory must be performed at the time a herd 
enrolls in the CWD Herd Certification Program. We are also providing 
that APHIS may accept a complete physical herd inventory performed by 
an APHIS employee, State representative, or accredited veterinarian not 
more than 1 year before the herd's date of enrollment in the CWD Herd 
Certification Program as fulfilling the requirement for an initial 
inventory. We would not accept such an inventory if the inventory did 
not appear to provide an accurate and complete accounting of the 
animals in the herd, or if the composition of the herd had changed 
substantially since the inventory was performed (for example, with 
large additions to or sales from the herd).
    One commenter asked whether inventories or inspections required by 
a State could satisfy the requirement for continuing inventories. In 
the commenter's State, unrestrained inventories are performed yearly 
with record verification.
    We would accept a yearly State inventory of a herd in the Herd 
Certification Program as fulfilling this requirement, as it would be 
conducted by a State representative. The inventory would have to meet 
the other requirements of paragraph (b)(4). We will work with States as 
we implement the CWD Herd Certification Program to establish inventory 
procedures, where necessary. However, an inventory consisting of record 
verification would not satisfy the requirements for a physical 
inventory at the time of enrollment and once every 3 years thereafter.
    In the Background section of the proposed rule, we stated that the 
proposed changes should also make it possible in many cases to plan the 
timing of a physical assembly of a cervid herd for inventory so that it 
is coordinated with testing for brucellosis and tuberculosis. We noted 
that, to maintain a herd's Certified status with regard to brucellosis, 
or its Accredited status with regard to tuberculosis, the herd must be 
retested for the relevant disease every 21 to 27 months under current 
brucellosis and tuberculosis regulations.
    Several commenters emphasized that, to have a successful program 
with producer buy-in, complete physical herd inventories should 
coincide with other industry animal health programs.

[[Page 35553]]

These commenters stated that the recertification frequency for cervids 
in the tuberculosis and brucellosis programs is 33 to 39 months.
    The commenters are correct that the frequency at which captive 
cervid herds that are accredited for tuberculosis are tested for that 
disease is 33 to 39 months, under Sec.  77.35(d). However, in the 
Uniform Methods and Rules for brucellosis in cervids,\3\ all test-
eligible animals in Certified Brucellosis-Free herds are required to 
have a negative test at intervals between 21 and 27 months. Both of 
these intervals may change in the future. Our intent was to indicate 
that there are already occasions at which the animals in a herd must be 
assembled, handled, and restrained, which are occasions at which a 
complete physical herd inventory could be conducted with minimal 
additional cost and disruption to the herd.
---------------------------------------------------------------------------

    \3\ Available at https://www.aphis.usda.gov/animal_health/animal_diseases/brucellosis/.
---------------------------------------------------------------------------

    Commenters raised other concerns with respect to timing. Several 
commenters stated that whole herd assembly for handling should be 
consistent and within the established husbandry timeframe practiced by 
the industry for the species in question. One commenter stated that 
physical inventories inspections should be limited to those periods 
where animal health will not be endangered, e.g., cows in late stage of 
pregnancy and bulls in velvet or hard antler. Two commenters stated 
that complete physical herd inventories could be done during weaning 
and/or breeding. One commenter noted generally that there are many 
times during a year that it would be dangerous to handle deer.
    We agree with these commenters that these issues should be taken 
into account when scheduling a complete physical herd inventory. We 
already take these issues into account when scheduling whole-herd tests 
for brucellosis and tuberculosis in farmed or captive cervids. In all 
cases, when scheduling a complete physical herd inventory, we will work 
with the owner of the herd to find a time that takes all relevant 
factors into account. We are providing a 3-year span in which a 
physical inventory may be conducted in order to allow for such 
flexibility of scheduling.
    Several commenters stated that, if herd records indicate that a 
specific number of animals are in a pen, and the inspector can verify 
that amount, there should be no need for a visual inspection of each 
tag.
    We disagree. Records could indicate that the number of animals in a 
pen was correct, but without verifying that the identification on each 
animal matches that reflected in the records, we cannot be certain that 
the animals in the pen are the same as the animals in the records. 
Another commenter noted that most forms of identification will not be 
readable from any distance unless the animal is restrained, which makes 
a hands-on physical inventory necessary.
    The regulations in this final rule do provide for an inventory 
based on records, but we will need to conduct complete physical herd 
inventories occasionally, for the reasons discussed earlier.
    Several commenters stated that whole herd inventories should be 
conducted during routine herd health procedures. If APHIS or another 
agency orders a physical inventory, these commenters stated, then APHIS 
or the ordering agency should be responsible for the costs, risks, and 
animal losses associated with handling the animals in the herd.
    As discussed earlier, we will make every effort to conduct complete 
physical herd inventories at times coincident with whole-herd testing 
or other times when the herd is being restrained for another purpose. 
However, we will not guarantee that all complete physical herd 
inventories will be conducted at such times; when there are reasons to 
suspect that recordkeeping is deficient, for example, we may need to 
conduct a complete physical herd inventory in order to provide 
assurance that the herd is in compliance with the CWD Herd 
Certification Program. In that case, owners will be responsible for all 
costs incurred to present the animals for inspection, a provision of 
the July 2006 final rule that we did not propose to change in March 
2009. The CWD Herd Certification Program is a voluntary program for 
herd owners who wish to avail themselves of the opportunity presented 
by the program to demonstrate that the animals in their herds are low-
risk for CWD. It is not appropriate to pay costs of participation in 
this voluntary program.
    We note that keeping accurate, complete, and up-to-date records 
will make APHIS employees more confident that an inventory conducted by 
reviewing records, as opposed to a physical inventory, may be 
sufficient to fulfill the yearly inventory requirement.
    Several commenters stated that the frequency of complete physical 
herd inventories must be consistent with animal health programs for 
other species, and that currently there is no annual herd inventory 
required for cattle herds in the tuberculosis or brucellosis programs.
    For the other programs to which the commenters refer, complete 
physical herd inventories are conducted at the time the whole-herd test 
is conducted. As discussed in this document, we plan to schedule 
complete physical herd inventories so that they coincide with other 
occasions when the herd is assembled, such as whole-herd tests for 
tuberculosis and brucellosis. However, unlike brucellosis and 
tuberculosis, there is no approved ante-mortem test for CWD, meaning 
that we cannot use testing to determine the health status of individual 
animals when they are moved interstate. Instead, we establish that 
animals in a herd are at low risk of being infected with CWD through 
surveillance over time. As the animals' low-risk status is thus tied to 
their membership in a herd that has undergone 5 years of surveillance 
without finding CWD, an annual inventory of the herd's records is 
necessary to validate those records. We note that the records inventory 
should be much less labor- and time-intensive than the physical herd 
inventory.
    We also proposed to amend paragraph (b)(4) to include accredited 
veterinarians as people who can conduct a herd inventory, along with 
APHIS employees and State representatives. The July 2006 final rule 
allows accredited veterinarians to perform many other Herd 
Certification Program functions; allowing them to conduct inventories 
would be consistent with the rest of the program.
    One commenter stated that States should be able to specify when and 
under what conditions accredited veterinarians are approved to conduct 
inventories. The commenter's State requires that a regulatory 
veterinarian conduct the first inventory; accredited veterinarians can 
conduct subsequent inventories.
    Under this final rule, States are free to put in place requirements 
regarding when an accredited veterinarian is allowed to conduct a herd 
inventory, such as the one the commenter describes.
    Several commenters expressed concern that the proposed rule did not 
prevent an accredited veterinarian from inventorying his or her own 
herd. Some of these commenters also stated that accredited 
veterinarians should not be able to issue certificates for the movement 
of animals from their own herds, as allowed by the July 2006 final rule 
under Sec.  81.4.
    Another commenter stated that accredited veterinarians should not 
be allowed to inspect their own herds to

[[Page 35554]]

determine whether they are in compliance.
    We disagree that such provisions are necessary for the regulations 
governing the CWD Herd Certification Program. Accredited veterinarians 
routinely perform accredited duties on their own animals in other 
Veterinary Services programs. Under our regulations in 9 CFR part 161, 
to maintain their accreditation, accredited veterinarians must comply 
with the standards for accredited veterinarian duties in Sec.  161.4. 
If an accredited veterinarian conducted an irregular inventory of his 
or her own cervid herd, we would suspend or revoke the accreditation of 
that veterinarian. Although our experience indicates that the 
commenters' concerns are misplaced, nonetheless, under this final rule, 
States are free to impose restrictions on what duties an accredited 
veterinarian performs on his or her own animals in the State's CWD 
program should they choose to.
    One commenter requested that we add a definition of accredited 
veterinarian.
    We concur that providing such a definition would improve the 
clarity of the regulations, particularly when other, similar parts in 
subchapters B and C include such a definition. Accordingly, we are 
adding a definition of accredited veterinarian to Sec. Sec.  55.1 and 
81.1 in this final rule. The definition indicates that an accredited 
veterinarian is approved by the Administrator in accordance with 9 CFR 
part 161 to perform functions specified in subchapters B, C, and D of 9 
CFR chapter I.
    One commenter stated that the annual inspection of captive cervid 
facilities should include participation from wildlife professionals as 
well as accredited veterinarians.
    Wildlife professionals could conduct inventories if they were State 
representatives with authority over farmed or captive cervids and 
involved in the oversight of the CWD Herd Certification Program. We 
note that the commenter is a representative of a State in which the 
wildlife authority has jurisdiction over farmed and captive cervids, so 
it is likely that, in this commenter's State, wildlife professionals 
would conduct or assist in inventories.
    One commenter recommended that we propose common inventory 
datasheets, allowing for States to design their own as localized issues 
may require some reasonable modifications.
    The regulations in paragraph (b)(4) of Sec.  55.23 already state 
the information that is required for an inventory: The age and sex of 
each animal, the date of acquisition and source of each animal that was 
not born into the herd, the date of disposal and destination of any 
animal removed from the herd, and all individual identification numbers 
(from tags, tattoos, electronic implants, etc.) associated with each 
animal. Under paragraph (a)(10) of Sec.  55.23, States are required to 
maintain this information in a State database, pending the creation of 
the CWD National Database administered by APHIS.
    In this final rule, we are amending the list of information 
required for each animal to include the species of the animal. This 
information will be useful in conducting inventories and confirming the 
accuracy of herd records.
    One commenter noted that, in hunting preserves, there is no way 
possible to assemble the animals for inventory because they are lost in 
many acres of woodland, and there is no way to track births inside of a 
hunting preserve. The commenter stated that these premises should be 
exempt from the inventory requirements, as the animals never leave the 
preserve alive anyway.
    Participation in the voluntary CWD Herd Certification Program will 
require maintenance of accurate, complete, and up-to-date herd records, 
and verifying those records when necessary. Such records are essential 
to allow a herd owner to demonstrate that animals in the herd are low 
risk for CWD. As discussed earlier, the CWD Herd Certification Program 
establishes that animals are low risk through surveillance over time, 
making it crucial that we know which animals are included in the 
surveillance. Herd owners should consider whether they can comply with 
the requirements of the CWD Herd Certification Program before applying 
to enroll in the program.
    One commenter stated that the regulations should require an 
adequate review of facility maintenance, animal health, and regulatory 
compliance during the nonphysical inventory.
    We do not believe it is necessary to indicate in the regulations 
that such a review will take place. APHIS employees and State 
representatives will evaluate these facility conditions during 
inventories, as well as at other times. If we discover that the 
requirements of the regulations are not being complied with, we will 
take appropriate action.

Confirmatory DNA Testing of Official Test Samples

    In the July 2006 final rule, Sec.  55.24 sets out provisions for 
determining the status of a herd of farmed or captive cervids enrolled 
in the CWD Herd Certification Program. Paragraph (c)(1) provides for an 
owner to appeal cancellation of enrollment or suspension or loss of 
herd status. We proposed to amend paragraph (c)(1) to provide a process 
by which herd owners can appeal the designation of an animal as CWD-
positive, based on DNA test results.
    Several commenters stated that any process for confirmatory DNA 
testing should include not just the current owner of an animal but also 
the original owner of the animal, if any. Some commenters stated that, 
in the event of a traceback, original owners should be allowed to 
submit their own samples. Two commenters stated that many herd owners 
conduct DNA testing on their animals at birth, allowing for the use of 
these records. Commenters also stated generally that many herd owners 
already have their animals' DNA profiled or recorded in a registry, 
meaning the confirmatory DNA testing process could make use of this 
information. Two commenters stated that owners should be allowed to 
keep DNA samples of animals they have sold for use in confirmatory DNA 
testing.
    Other commenters stated that tissue for DNA testing should be 
required to accompany all samples sent for CWD testing, to protect 
previous owners who cannot submit tissues when animals are tested but 
who will be implicated in the event of a positive CWD test result.
    We understand the concerns of the commenters that previous owners 
of an animal may be implicated in a traceback resulting from a CWD-
positive animal, since such implication may lead to the suspension or 
loss of a herd's CWD status. However, the goal of the confirmatory DNA 
testing provisions is only to verify that the sample tested is a match 
for a particular animal.
    The recordkeeping requirements in the regulations, if followed, 
will allow us to conduct tracebacks in the event of a positive CWD test 
result. As discussed earlier, we require an annual inventory in part to 
ensure that we can conduct an appropriate traceback.
    Our regulations do not prevent owners of animals from retaining DNA 
samples of animals they sell. Sellers of animals are also free to 
contract with their buyers to provide that the buyers will submit a DNA 
sample for confirmatory testing if the animal is tested for CWD.
    As discussed in the proposed rule, we have added the option of 
confirmatory DNA testing in response to commenters. However, we should 
note that we currently maintain rigorous chain-of-custody procedures 
for samples that are submitted for CWD testing, and we will continue to 
maintain these procedures

[[Page 35555]]

both for samples that are not accompanied by tissue for confirmatory 
DNA testing and those that are. We are confident that our current 
processes ensure that test results are correctly assigned to individual 
animals, as they do in other APHIS animal health programs.
    We stated that our guidance on confirmatory DNA testing would allow 
an owner to reserve the option for confirmatory DNA testing by 
informing the Federal or State representative or accredited 
veterinarian who collects the tissues. To allow for later confirmatory 
DNA testing, we proposed that the person collecting the tissues would 
also collect from the animal some somatic tissue that contains an 
official identification device, along with the tissue samples routinely 
collected for CWD testing (brain stem, lymph nodes, etc.). Submitting 
tissues attached to an official identification device establishes a 
reliable chain of custody that allows later DNA tests to be compared to 
a tissue sample that verifiably comes from the owner's animal in 
question.
    One commenter stated that the requirement to maintain an official 
identification device with every DNA sample is an absurd requirement 
designed to impede confirmatory activities, particularly if the samples 
are held by an independent third party. The commenter stated that APHIS 
itself does not require samples to be accompanied by official 
identification. Another commenter stated that, if an accredited 
veterinarian is submitting all samples, there should be no need to have 
tissue attached to the official identification.
    The official identification device is necessary in order to ensure 
that there is an incontestable association between the tissue whose DNA 
is tested and the animal being tested. Without official identification 
attached to the tissue being tested, both APHIS and the owner would 
rely on APHIS' chain-of-custody processes to ensure that the identity 
of the animal is associated properly with the DNA test results of the 
tissue sample.
    As discussed earlier, we are confident that our chain-of-custody 
processes are effective. However, as a request for confirmatory DNA 
testing indicates that the owner wants additional assurance regarding 
the effectiveness of those processes (including the submission of 
samples by an accredited veterinarian), it would not make sense to rely 
on that chain of custody for confirmatory DNA testing as well.
    We discuss other comments related to third parties conducting CWD 
tests and holding samples later under this heading.
    Several commenters expressed concern regarding the requirement to 
include somatic tissue with an official identification device. These 
commenters stated that it would be difficult to fulfill such a 
requirement, especially for male animals, where taxidermy work requires 
the head, shoulder, and neck areas to be left intact for the mounting 
process. In the trophy market, a missing piece of ear would devalue the 
animal. These commenters also stated that the requirement for tissue to 
be attached to the official identification is not practical when a 
microchip is the official identification device.
    As explained earlier, we need an official identification device to 
be attached to the somatic tissue in order to establish an 
incontestable link between the two. The confirmatory DNA testing 
process is optional for owners. If owners believe that supplying the 
tissue necessary to conduct confirmatory DNA testing will result in an 
economically unacceptable devaluation of their animals, they should not 
choose to use this optional process.
    Microchips that are used as official identification devices are 
designed so that some tissue adheres to the microchip. This is to 
prevent a person from moving an official identification microchip from 
one animal to another. The somatic tissue that adheres to such 
microchips when removed from the animal will be usable in our 
confirmatory DNA testing process.
    As an alternative to providing somatic tissue with official 
identification attached, several commenters suggested that accredited 
veterinarians collect DNA samples for each animal during the complete 
physical herd inventory and store them until the animals are tested for 
CWD. Some of these commenters stated that such samples should be held 
by a third party.
    Our program resources are not sufficient to allow us to build or 
lease space in which to store sample tissue for DNA testing for each 
farmed or captive cervid that is identified in a complete physical herd 
inventory, or to contract for such storage. In any case, using DNA 
samples stored by APHIS or a third party for confirmatory testing would 
create chain-of-custody issues, rather than resolve them.
    Several commenters stated that a neutral third party should 
maintain the tissue to be used for confirmatory DNA testing.
    Most CWD samples are tested by third-party laboratories, either 
State or university laboratories. These third-party laboratories are 
approved to conduct CWD testing under Sec.  55.8(d). We audit third-
party laboratories to make sure they comply with the standards set out 
in Sec.  55.8(d).
    If an owner decides that DNA testing is necessary to confirm the 
identity of the animal that tested positive for CWD, tissue attached to 
an official identification device would be used for the testing, to 
ensure that the brain or lymph node sample that tests positive for CWD 
has the same DNA as the tissue attached to the official identification 
device. The sample used for confirmatory DNA testing would accompany 
the sample of brain and lymph node tested for CWD to ensure that chain 
of custody is not broken.
    The National Veterinary Services Laboratories (NVSL) is the only 
laboratory authorized to confirm a CWD-positive test result from a 
third-party laboratory, so any tissue to be used for confirmatory DNA 
testing for an animal that tested positive for CWD would have to 
accompany the suspect sample to NVSL from the third-party laboratory, 
in order to maintain chain of custody. We are planning to conduct the 
optional confirmatory DNA testing at NVSL or at a third-party 
laboratory authorized to perform such testing. The sample for CWD 
testing will be accompanied by the tissue for confirmatory DNA testing 
at all times. Therefore, the involvement of a neutral third party is 
not necessary and would in fact increase complications in maintaining 
chain of custody.
    One commenter recommended that the cost of DNA testing be borne 
initially by APHIS, to show that positive tests truly came from the 
animals for which the positive test results were reported. If the 
association of the animal with the positive test results is confirmed, 
the commenter recommended, the owner's indemnity would be reduced by 
the cost of the testing. If the association is not confirmed, the 
animal would no longer be a CWD suspect and APHIS should be held 
responsible for all costs associated with such confirmatory testing and 
herd disruption. This commenter also stated that confirmatory DNA 
testing should be performed on all CWD-positive cervids, so as to 
remove the onus of possible Government error.
    The commenter's recommendations are impractical in several 
respects. Not all herds in which animals are diagnosed as CWD-positive 
are subsequently depopulated, as discussed earlier in this document 
under the heading ``Movement of Animals into CWD-Positive, CWD-Exposed, 
and CWD-Suspect Herds.'' A CWD diagnosis in those herds would not 
result in the payment of indemnity, meaning that we could not recover 
the costs of

[[Page 35556]]

confirmatory DNA testing. Performing confirmatory DNA testing on every 
CWD-positive sample we receive could thus require substantial 
resources. In addition, as discussed earlier, providing the necessary 
somatic tissue attached to official identification could be difficult 
for some herd owners, meaning they might not want to participate in 
confirmatory DNA testing.
    Confirmatory DNA testing is an optional service we proposed to 
provide, based on the requests of commenters, only when herd owners 
request the service. We are confident that our chain-of-custody 
processes are effective. We do not believe it is an appropriate use of 
APHIS' limited resources to pay for confirmatory DNA testing. As noted 
earlier, the CWD Herd Certification Program is a voluntary program for 
herd owners who wish to avail themselves of the opportunity presented 
by the program to demonstrate that the animals in their herds are low-
risk for CWD. It is not appropriate to pay any of the costs of 
participation in this voluntary program, such as costs associated with 
herd disruption. In any case, disruption in the circumstances the 
commenter cites would be temporary, as the herd's status would be 
restored after the error was found.
    One commenter stated that allowing for confirmatory DNA testing 
would be contrary to current accepted procedures that allow for the 
immediate depopulation of herds in the event of a serious livestock 
disease outbreak. The commenter stated that delays inherent in DNA 
retesting potentially allow for continued disease exposure both to 
cohort animals, but also the continued contamination of the 
environment; in addition, the longer depopulation is delayed, the 
greater the risk that animals may escape or be illegally moved.
    The available scientific evidence indicates that CWD is not an 
acute infectious disease; typically, by the time it is diagnosed in an 
animal, the disease has been present on a premises for a year or more. 
In addition, the confirmatory DNA testing is not expected to take more 
than a few days. Accordingly, we have determined that the risks the 
commenter identifies with respect to disease spread are unlikely. As 
the commenter notes, any movement from a herd in which an animal has 
been identified as CWD-positive would be illegal; we work with our 
State counterparts to ensure effective enforcement of this requirement. 
We are making no changes in response to this comment.
    However, we are making two changes to the proposed protocol in this 
final rule. As proposed, the protocol indicated that a Federal or State 
veterinarian or accredited veterinarian would collect the tissue for 
testing. However, we do not plan to require that a veterinarian collect 
samples for CWD testing, so it would be inappropriate to require that a 
veterinarian also collect tissue for DNA testing. Therefore, we are 
removing the references in the proposed rule to the persons who can 
collect the samples. In addition, we are clarifying that the tissue 
tested for comparison to a CWD sample must have been collected from the 
same animal.

Monitoring Period Required To Move Deer, Elk, and Moose Interstate

    In the July 2006 final rule, part 81 contains restrictions on the 
interstate movement of farmed or captive deer, elk, and moose that are 
designed to prevent the spread of CWD. Paragraph (a) of Sec.  81.3 
contains general restrictions on the interstate movement of deer, elk, 
and moose in the CWD Herd Certification Program. Under the July 2006 
final rule, during its first year of implementation, cervids would be 
allowed to move interstate if they have been in an approved CWD Herd 
Certification program, and thus subject to monitoring for CWD and other 
requirements, for at least 1 year. The CWD final rule increased this 
length-of-time requirement in succeeding years of implementation, so 
the time animals would have had to be in a herd certification program 
in order to move interstate gradually increased to 2 years, then 3, 
then 4, then 5 years.
    In response to the petitions and many comments we received on the 
petitions, and based on a review of the available scientific evidence 
regarding the range of incubation periods for CWD, we proposed to 
remove the gradual escalation of the length-of-time requirement for 
farmed or captive deer, elk, or moose moved interstate. We instead 
proposed to require farmed or captive deer, elk, or moose moved 
interstate to be from herds that have had at least 5 years' monitoring 
in the CWD Herd Certification Program and have achieved Certified 
status. We stated that this requirement is based on our interpretation 
of currently available research, and we may propose to modify it in the 
future if additional research provides a basis for doing so.
    One commenter stated that the 5-year monitoring period seems 
reasonable at this time, but there should be flexibility to immediately 
extend that period should science dictate such an extension is 
warranted. Another commenter stated that any regulation, Federal or 
State, should allow for rapid modification of such a requirement as new 
scientific information becomes available.
    We agree. If the scientific evidence regarding the range of 
incubation periods for CWD advances and indicates that the 5-year 
monitoring requirement is either longer than necessary or not long 
enough, we will promptly propose appropriate changes to the 
regulations.
    One commenter supported the 5-year monitoring requirement, but 
stated that there needs to be a way a new farmer can immediately 
achieve Certified status by purchasing a new herd from a farm or farms 
that are certified 5 years or more.
    The regulations in Sec.  55.24, which govern herd status, provide 
for the creation of a herd in the manner the commenter describes. 
Specifically, paragraph (a) of Sec.  55.24 states that when a herd is 
first enrolled in the CWD Herd Certification Program, if the herd is 
composed solely of animals obtained from herds already enrolled in the 
program, the newly enrolled herd will have the same status as the 
lowest status of any herd that provided animals for the new herd. 
Therefore, if a new farmer purchased only farmed or captive cervids 
from herds that have achieved Certified status, and if the new herd met 
the other requirements in part 55 for herd participation, that herd 
would enter the program at Certified status.
    One commenter stated that, in 9 years of raising elk, no CWD cases 
have been found in his herds. The commenter currently has a small herd 
that was established in 2006. The commenter stated that he would like 
to begin selling breeding stock and hunting bulls to other ranches, but 
the new 5-year requirement would prevent his ranch and all other 
ranches from doing this.
    As discussed in response to the previous comment, if the 
commenter's herd is composed solely of animals obtained from herds 
already enrolled in the CWD Herd Certification Program, he may be able 
to get credit for those animals' statuses that would allow him to reach 
Certified status and thus move his animals interstate. We believe that 
many cervid producers who rely on moving animals interstate for the 
success of their businesses have already participated in a State CWD 
herd certification and monitoring program for 5 years or longer, and 
thus would not be adversely affected by the adoption of a 5-year 
standard. In any case, in our review of the scientific evidence 
regarding the range of incubation periods for CWD, we determined that 
requiring 5 years of monitoring in order for animals in the CWD Herd 
Certification Program to move interstate

[[Page 35557]]

was appropriate. The commenter did not provide any evidence to the 
contrary.
    In a related change, we proposed to add two general requirements in 
a new Sec.  81.3(a) for certification of all deer, elk, and moose moved 
interstate, not just those in the CWD Herd Certification Program. One 
requirement was that no deer, elk, or moose originating from a premises 
that was within 25 miles (40 km) of a federally or State-identified 
case of CWD in wild deer, elk, or moose, or within 25 miles (40 km) of 
an area where CWD has become established in wild deer, elk, or moose, 
as defined by APHIS and the State, could be moved into a State that did 
not accept such animals. We are not including this requirement in the 
final rule for reasons discussed in the section ``Changes in the March 
2009 Proposed Rule That Are Now Unnecessary.''
    The other requirement, which we proposed to add as a new paragraph 
(a)(1), was that no farmed or captive deer, elk, or moose may be moved 
interstate from farmed or captive herds infected with CWD, or 
epidemiologically linked to herds infected with CWD within the past 5 
years.
    Several commenters asked us to clarify the meaning of the term 
``epidemiologically linked'' in proposed paragraph (a)(1). Two 
commenters expressed specific concerns regarding the scenario of a 
Certified herd selling animals to another herd, following which CWD is 
discovered in the receiving herd; the commenters wanted to know whether 
the Certified source herd would qualify as ``epidemiologically linked'' 
in this case. Two other commenters asked whether, if an animal is 
linked through epidemiological investigation to a CWD-positive herd, 
but the animal in question is tested for CWD and found not to be CWD-
positive, the herd containing that animal would be epidemiologically 
linked to the herd infected with CWD.
    We understand the potential confusion associated with our use of 
the term ``epidemiologically linked'' in proposed Sec.  81.3(a)(1). For 
herds in the CWD Herd Certification Program, we have a full description 
of how epidemiological linkages are investigated and how herd status 
may be suspended or lost in Sec.  55.24(b), but our proposed 
requirement in paragraph (a)(1) would have applied to all deer, elk, 
and moose moved interstate.
    In light of our not including the proposed proximity provisions in 
the final rule, we examined proposed paragraph (a)(1) and found it to 
be unnecessary. The regulations provide for the interstate movement of 
farmed or captive deer, elk, and moose in five circumstances. In each 
of these circumstances, it is unnecessary to require separately that 
the animal being moved interstate not be from a herd where CWD has been 
diagnosed in the past 5 years or that is epidemiologically linked to 
herds where CWD has been diagnosed in the past 5 years.
     Animals in the CWD Herd Certification Program. We proposed 
to require that such animals come from herds that have achieved 
Certified status. In order to achieve Certified status, the herd must 
not contain CWD-positive animals or be epidemiologically linked to a 
CWD-positive herd, as described in Sec.  55.24. Therefore, having a 
separate requirement regarding epidemiological linkage is superfluous 
for these animals.
     Animals captured from wild populations for interstate 
movement or release. The July 2006 final rule requires that such an 
animal must have two forms of animal identification, one of which is 
official animal identification, and a certificate accompanying the 
animal must document the source population to be low risk for CWD, 
based on a CWD surveillance program that is approved by the State 
Government of the receiving State and by APHIS. As such animals do not 
originate from farmed or captive herds, it would be impossible to 
certify that they are not from a CWD-positive herd or that they are not 
epidemiologically linked to such a herd.
    We are making changes related to the movement of animals captured 
for interstate movement or release in this final rule. In the July 2006 
final rule, the requirements for issuance of certificates for all 
captive cervids in Sec.  81.4(a) included a requirement that the 
certificate include a statement that the animals are from a herd that 
has achieved Certified status in the CWD Herd Certification Program, 
and must provide the herd's program status; no exception was made for 
animals captured from wild populations for interstate movement and 
release. However, it is impossible to provide that information for such 
animals, which is why the regulations in Sec.  81.3(b) include the 
alternative requirement to document the animals' source population as 
low risk for CWD. We are amending Sec.  81.4 to remove the requirement 
for documentation of the captured wild animals' Certified status in the 
CWD program. We are also making minor editorial changes to Sec.  
81.3(b) to indicate that the certificate must state that the source 
population has been documented to be low risk for CWD, rather than 
indicating that the certificate itself must provide this documentation.
     Animals moved to slaughter. The July 2006 final rule 
requires that these animals have two forms of identification and be 
moved interstate with a certificate. There is no need for further 
restriction of animals moved to slaughter based on epidemiological 
linkage, as animals moved to slaughter are a low-risk pathway for the 
spread of disease.
     Research animals. Such animals are moved under special 
permits for research purposes. It may well be valuable to move animals 
interstate for research that are from or are epidemiologically linked 
to CWD-positive herds.
     Interstate movements approved by the Administrator. It 
would be inappropriate to limit the Administrator's authority to 
approve interstate movement of animals to animals that are not from 
CWD-positive herds or epidemiologically linked to CWD-positive herds.
    Therefore, we are not including proposed paragraph (a)(1) in this 
final rule. Section 81.3 in this final rule resembles the section as it 
appeared in the July 2006 final rule, except that paragraph (a), the 
paragraph describing interstate movement restrictions for farmed or 
captive deer, elk, and moose in the CWD Herd Certification Program, now 
indicates that such animals must come from a herd that has achieved 
Certified status in accordance with Sec.  55.24. We are also not 
including a provision we proposed to add in Sec.  81.4 that would have 
required a certificate for the interstate movement of deer, elk, or 
moose to include a statement that the animal being moved interstate are 
not from farmed or captive herds infected with CWD, or 
epidemiologically linked to herds infected with CWD within the past 5 
years.

Certification That Deer, Elk, and Moose Moved Interstate Do Not Show 
Clinical Signs of CWD

    In the July 2006 final rule, paragraph (a)(2) of Sec.  81.3 
requires a farmed or captive deer, elk, or moose that is moved 
interstate and that is from a herd in the CWD Herd Certification 
Program to be accompanied by a certificate issued in accordance with 
Sec.  81.4 that identifies its herd of origin and its herd's CWD Herd 
Certification Program status, and states that it is not a CWD-positive, 
CWD-exposed, or CWD-suspect animal.
    We proposed to change these requirements. Because we proposed to

[[Page 35558]]

require that all animals from the CWD Herd Certification Program moved 
interstate to be monitored for 5 years, we proposed to change the 
requirement to indicate that the herd status must be Certified. We also 
proposed to require that the certificate indicate that the animal does 
not show clinical signs associated with CWD, rather than that the 
animal is not a CWD-positive, CWD-exposed, or CWD-suspect animal. 
Requiring the certificate to state that the animal does not show 
clinical signs associated with CWD is consistent with information that 
can be obtained from an examination and with other interstate animal 
movement regulations.
    One commenter asked whether fulfilling this requirement would 
necessitate a veterinary inspection prior to movement. If so, the 
commenter stated, then the requirement is extremely burdensome. The 
commenter's State requires a brand inspector to inspect all animals 
prior to movement, meaning that having a veterinarian conduct an 
additional inspection is unnecessary if the herd has been certified. 
The commenter stated that the brand inspector would easily recognize 
CWD symptoms.
    Requiring a veterinarian to inspect animals moved interstate is 
standard in all APHIS disease programs, and a veterinary inspection for 
farmed or captive deer, elk, and moose moved interstate is essential to 
ensure that the animal being moved interstate is apparently healthy and 
meets the requirements of the regulations. Both State veterinarians and 
accredited veterinarians who perform this certification must comply 
with certain standards of practice and are accountable to APHIS. 
Allowing some other agency to inspect and certify animals for 
interstate movement would not provide the assurance that the 
requirement for a veterinary inspection does. (We note that the July 
2006 final rule also required the certificate accompanying a farmed or 
captive deer, elk, or moose moved interstate to be issued by a Federal 
veterinarian, State veterinarian, or accredited veterinarian, as 
discussed in Sec.  81.4, ``Issuance of certificates.'')

Comments Not Related to the March 2009 Proposed Rule

    Commenters on the March 2009 proposed rule raised several issues 
not related to the changes discussed in that document.
    Some commenters stated that it was difficult to understand the full 
scope and content of the proposed CWD Herd Certification Program from 
the March 2009 proposed rule because the full text of the rule was not 
included. The commenters stated that they had raised concerns regarding 
aspects of the July 2006 final rule that were not addressed in the 
March 2009 proposed rule. The commenters stated that the incomplete 
text left uncertainty about other aspects of the program.
    We developed the March 2009 proposed rule to address issues with 
respect to the July 2006 final rule that were raised in the petitions 
or in response to the petitions. Accordingly, the March 2009 proposed 
rule set out only the changes that we proposed to make to the July 2006 
final rule. However, we understand that this could be confusing. To aid 
the reader, in this final rule we are setting out the entirety of the 
regulatory text in the July 2006 final rule, with the changes discussed 
in the March 2009 proposed rule and in this document. When this final 
rule becomes effective, the provisions in the regulatory text at the 
end of this document will be added to the Code of Federal Regulations. 
In addition, we are responding in this document to the comments we 
received on aspects of the July 2006 final rule that were not included 
in the March 2009 proposed rule, as well as other aspects of the 
regulations.
    The regulations currently include in Sec.  55.1 a definition of 
herd. A herd is defined as a group of animals that are under common 
ownership or supervision and are grouped on one or more parts of any 
single premises (lot, farm, or ranch), or all animals under common 
ownership or supervision on two or more premises which are 
geographically separated but on which animals have been interchanged or 
had direct or indirect contact with one another.
    One commenter stated that this definition permits the intrastate, 
and depending on proximity to a State border perhaps even the 
interstate, transportation of animals from one facility to another 
regardless of their status in the program.
    Any deer, elk, or moose moved interstate must meet the requirements 
of part 81. If they are moved intrastate, they must meet applicable 
State requirements; Federal regulations do not restrict intrastate 
movement, although we do require States that participate in the CWD 
Herd Certification Program to have the authority to restrict intrastate 
movement of cervids. The definition of herd in part 55 does not have 
any bearing on the movement restrictions in part 81.
    The July 2006 final rule included a definition of herd plan. Such a 
plan sets out steps to be taken to eradicate CWD from a CWD-positive 
herd, to control the risk of CWD in a CWD-exposed or CWD-suspect herd, 
or to prevent the introduction of CWD into that herd or any other herd.
    Several commenters stated that herd plans should not allow 
reintroduction of cervids into a facility previously inhabited by CWD-
positive animals, given evidence about the persistence of CWD in the 
environment and the lack of validated methods for decontaminating 
facilities that have housed CWD-positive animals.
    One commenter expressed concern about the threat a premises that 
has held CWD-positive animals poses to wild cervids. This commenter 
stated that fences should remain in place on CWD-positive farms until a 
scientifically proven method has been developed for decontaminating 
facilities. Another stated that any premises that has held a CWD-
positive animal should be quarantined for 5 years after the herd is 
depopulated, with no livestock allowed on the premises, followed by a 
reevaluation of the land and any environmental risk factors.
    We note that all herds that participate in the CWD Herd 
Certification Program are required to have perimeter fencing under 
Sec.  55.23(b)(2). As discussed in the July 2006 final rule, the 
definition's language will allow a herd plan to prohibit cervids from a 
premises for an appropriate period based on the specific risks and 
conditions of the individual herd. Ongoing and future research may help 
resolve many questions about environmental transmission of CWD and 
establish reasonable standards for when it is safe to repopulate a 
previously contaminated premises.
    We do not consider it necessary to require permanent fencing of 
premises that contained CWD-positive herds for the purposes of 
preventing the interstate spread of CWD through the movement of farmed 
or captive cervids. However, under this final rule, States may impose 
requirements that are more restrictive.
    As discussed earlier in this document, in the July 2006 final rule, 
paragraph (a)(4) of Sec.  55.23 requires States to place all known CWD-
positive, CWD-exposed, and CWD-suspect animals and herds under movement 
restrictions, with movement of animals from them only for destruction 
or under permit.
    One commenter stated that all CWD-positive herds should be 
immediately quarantined and automatically depopulated upon verification 
of CWD-positive test results from two USDA-approved laboratories, as 
well as any herds traced forward or backward from a CWD-positive herd. 
The commenter stated that all cervids in such herds and

[[Page 35559]]

on such premises should be destroyed on site. Another commenter stated 
that all animals on game farms should be tested for CWD, with any 
positive test resulting in complete herd eradication.
    We do not consider it necessary to immediately depopulate CWD-
positive herds for the purpose of preventing the interstate spread of 
CWD through the movement of farmed or captive cervids. Animals from 
such herds will not be allowed to be moved interstate under this final 
rule, except directly to slaughter or under a research animal permit. 
We note that, under this final rule, States may require depopulation of 
CWD-positive and CWD-exposed herds.
    In the July 2006 final rule, paragraph (b)(3) of Sec.  55.23 
requires herd owners participating in the CWD Herd Certification 
Program to make the carcasses of all animals that die (including 
animals killed on premises maintained for hunting and animals sent to 
slaughter) available for tissue sampling and testing in accordance with 
instructions from the APHIS or State representative.
    One commenter asked us to consider herd plans that do not require 
100 percent testing of all animals that die or are killed when 
developing the guidance for implementing the CWD regulations. The 
commenter stated that 100 percent compliance may not always be 
possible, and expressed concern that Certified herds would lose their 
status by failing to provide samples. Another commenter stated that the 
regulations need to provide allowances for when animals escape or other 
factors make it impossible to provide a sample.
    Testing all animals that die for CWD is necessary to establish, 
through surveillance over time, that animals in a particular herd are 
low risk for CWD. However, the regulations in Sec.  55.23(b)(3) do 
provide that, in cases where animals escape or disappear and thus are 
not available for tissue sampling and testing, an APHIS representative 
will investigate whether the unavailability of animals for testing 
constitutes a failure to comply with program requirements and will 
affect the herd's status in the CWD Herd Certification Program, meaning 
we have provided the appropriate degree of program discretion in cases 
where a herd owner finds it impossible to provide samples.
    In this final rule, we are amending Sec.  55.23(b)(3) to indicate 
that we will also investigate program compliance when the samples 
provided are of poor quality, thus making it impossible to test them 
for CWD. Providing samples of poor quality causes the same problems as 
not providing a sample, and we need to be able to test all animals that 
die in a herd that is enrolled in the CWD Herd Certification Program.
    One commenter stated that the regulations should provide a maximum 
time limit within which carcasses must be tested. In the commenter's 
State, for example, all licensees must submit carcasses for testing 
within 48 hours of the cervid's death to ensure that our agency can 
collect acceptable tissue samples for laboratory testing.
    APHIS and the States are responsible for collecting the sample, 
once the owner makes it available, and testing it. We do so in 
accordance with guidelines that ensure that we have usable samples. The 
regulations in Sec.  55.23(b)(3) require herd owners to immediately 
report deaths of deer, elk, or moose 12 months of age or older, which 
will give us adequate time to collect and test samples.
    One commenter stated that the July 2006 final rule does not prevent 
the owner from removing animal identification prior to making cervid 
carcasses available to the State for CWD testing. The commenter stated 
that, if tags are removed before testing, cervid carcasses cannot be 
accurately identified nor can the movement history of individual 
animals be determined.
    The regulations in Sec.  55.23(b)(1) require all animals in a herd 
that is participating in the CWD Herd Certification Program to be 
identified. Paragraph (b)(3) requires all reports of animals that die 
to include the identification numbers of the animals involved. Section 
55.25 requires animals in the program to be identified with an 
electronic implant, flank tattoo, ear tattoo, tamper-resistant ear tag, 
or another device approved by APHIS. Such identification cannot be 
removed from the animal without leaving evidence that the 
identification has been removed, thus indicating noncompliance with the 
regulations. These requirements, taken together, address the 
commenter's concern.
    Several commenters noted that, under Sec.  55.24(a), Certified 
herds are not required to conduct slaughter surveillance and 
surveillance of animals killed in shooter operations. One commenter 
recommended that we require all animals that die to be tested for CWD 
in order to ensure that any CWD present in captive cervid facilities is 
detected.
    Some commenters focused on shooter operations as a potential risk, 
stating that such facilities tend to be large, which creates more 
potential for ingress and egress of cervids, and are difficult to 
accurately inventory. These commenters stated that such circumstances 
make it even more important to maintain surveillance in those 
facilities.
    Another commenter noted generally that there are data indicating 
that CWD prevalence is higher in adult male deer.\4\ Since CWD can 
occur at a low prevalence and is difficult to detect, the commenter 
stated, excluding any animal from the testing requirement decreases the 
chances of detecting the disease when present. Thus, the commenter 
stated, excluding adult male deer that die or are killed on a premises 
would not be appropriate.
---------------------------------------------------------------------------

    \4\ Miller, M. W., and M. M. Conner. 2005. Epidemiology of 
chronic wasting disease in free-ranging mule deer: spatial, 
temporal, and demographic influences on observed prevalence 
patterns. Journal of Wildlife Diseases 41: 275-290.
---------------------------------------------------------------------------

    We agree that CWD can be difficult to detect even in infected 
animals. For example, in one herd that was depopulated in Minnesota, 
multiple elk that had shown no clinical signs of CWD turned out to be 
CWD-positive after testing. Animals in such a circumstance and in a 
Certified herd would not have been required to be tested for CWD under 
Sec.  55.24(a). This indicates that we need to continue slaughter 
surveillance and surveillance of animals killed in shooter operations 
in order to provide additional certainty that Certified herds contain 
only animals that are low risk for CWD. Therefore, we are removing the 
provision in Sec.  55.24(a) allowing Certified herds not to conduct 
slaughter surveillance and surveillance of animals killed in shooter 
operations.
    We will, however, continue to evaluate the effectiveness of these 
regulations and will revisit this issue after the program has been 
established for some reasonable period of time. More scientific 
research may become available that guides our thinking on the most 
efficient, cost-effective forms of CWD surveillance.
    With respect to the concerns specific to shooter operations, we 
note that, for herds in the CWD Herd Certification Program, herd 
premises must have perimeter fencing adequate to prevent ingress and 
egress of cervids under Sec.  55.23(b)(2). The herd owner must also 
allow for an inventory, as described in Sec.  55.23(b)(4). Herds that 
cannot meet these requirements would not be eligible for the program.
    One commenter stated that the final rule requires testing only of 
cervids 16 months of age or older. The commenter stated that cervids 
are apparently susceptible to CWD at birth and CWD has been documented 
in cervids as young as 9 months of age. In the commenter's State, 
licensees are required to test all captive cervids 6

[[Page 35560]]

months of age or older that die for any reason. The commenter suggested 
that we change our requirement to apply to all cervids 6 months of age 
or older.
    As mentioned earlier, our regulations require that herd owners 
report the deaths of all cervids 12 months of age or older, not 16 
months, and make the carcasses of those animals available for tissue 
sampling and testing. As discussed in the July 2006 final rule, the 12-
month standard is based on our best approximation of the point where 
the value of additional epidemiological information exceeds the costs 
to producers and to program administration of testing younger animals. 
We will continue to review this standard as we gain more experience 
with the CWD Herd Certification Program and as new scientific 
information becomes available.
    One commenter stated that paragraph (b)(3) of Sec.  55.23 in the 
July 2006 final rule identifies APHIS employees and State 
representatives as people who can collect CWD test samples. The 
commenter stated that there is no definition of a State representative. 
Facing large volumes of CWD test samples, the commenter's State has 
established a formal program to certify private-sector collectors to 
provide routine surveillance samples for CWD program herds. The 
commenter stated that this program has the full confidence of APHIS 
staff in the State and that the regulations should recognize the 
program by defining ``State representative'' as a designated individual 
trained by the State in addition to accredited veterinarians and State 
or Federal officials.
    The commenter is mistaken about the requirements of paragraph 
(b)(3); they do not discuss sample collection or testing, but merely 
require the owner to notify an APHIS employee or State representative 
of animals that escape, disappear, or die, and to make the carcasses of 
animals that die available for tissue sampling and testing in 
accordance with instructions from the APHIS or State representative.
    However, we will work out procedures for sample collection and 
testing with States that have Approved State CWD Herd Certification 
Programs under Sec.  55.22(b). In general, we would require that any 
private-sector collectors of CWD samples operate within a structure 
that provides accountability to the State and APHIS, as the program in 
the commenter's State does.
    It should also be noted that Sec.  55.1 does contain a definition 
of State representative, which reads as follows: ``A person regularly 
employed in the animal health work of a State and who is authorized by 
that State to perform the function involved under a cooperative 
agreement with the United States Department of Agriculture.'' We are 
amending this definition in this final rule to remove the reference to 
performing functions under a cooperative agreement, as not all 
functions performed by a State representative under the regulations 
will be performed under a cooperative agreement.
    In the July 2006 final rule, paragraph (c) of Sec.  55.24 provides 
that the Administrator may cancel enrollment after determining that the 
herd owner failed to comply with any requirements of Sec.  55.24.
    One commenter stated that the final rule does not include 
definitive actions or mechanisms to decertify captive herds if the 
owners fail to meet the program's requirements after they have been 
certified. These should include actions that will be taken if, for 
example, animals are not properly tagged, animals are not tested, 
fences are not maintained, or if the required records are incorrect, 
mishandled, or not provided.
    We intended that paragraph (c) indicate that the Administrator may 
cancel enrollment after determining that the herd owner failed to 
comply with any requirements of subpart B in part 55. This would 
include failure to comply with the requirements the commenter 
mentioned, as well as failure to comply with herd plans and other 
important provisions of the CWD Herd Certification Program. 
Accordingly, this final rule corrects that provision of the 
regulations.
    As the commenter implies, sometimes we may take actions short of 
cancellation in response to a failure to comply with the regulations. 
Because individual cases of failure to comply with the regulations will 
be different, we believe it is appropriate to make decisions on a case-
by-case basis. However, with this change, we will make clear that the 
consequences of violations of the requirements can include cancellation 
of enrollment if the Administrator should determine that it is 
necessary and appropriate.
    Paragraph (c) also provides that, in the event that a herd's 
enrollment is canceled, the herd owner may not reapply to enroll in the 
CWD Herd Certification Program for 5 years from the effective date of 
the cancellation. One commenter expressed concern that, because it 
takes 5 years for a herd to achieve Certified status, a herd owner 
whose enrollment was canceled would need 10 years to return a herd to 
Certified status. The commenter recommended allowing re-enrollment of 
canceled herds immediately.
    We have reevaluated the provision and determined that the 5-year 
enrollment waiting period is not necessarily appropriate. While the 
animals from a herd whose enrollment has been canceled should not be 
moved interstate, it increases the strength of the CWD Herd 
Certification Program to have monitoring in place for those animals 
through the program. In addition, under the July 2006 final rule, after 
the 5-year waiting period is up, the owner of a herd whose enrollment 
is canceled could assemble a new herd composed of animals from 
Certified herds and thus be granted Certified status immediately, with 
no opportunity to monitor the owner's compliance before animals begin 
moving interstate from the herd.
    To provide for monitoring of both types of herds, we are changing 
Sec.  55.24(c) to indicate that any herd enrolled in the CWD Herd 
Certification Program by an owner whose herd's enrollment has been 
canceled may not reach Certified status until 5 years after the herd 
owner's new application for enrollment is approved by APHIS, regardless 
of the status of the animals of which the herd is composed. This change 
will provide for herds whose enrollment is canceled to immediately re-
enter the program and thus be subject to monitoring. It will also 
ensure that newly assembled herds whose owners' enrollment was 
previously canceled are subject to thorough monitoring before animals 
from those herds can move interstate.
    In the July 2006 final rule, Sec.  55.25 set out requirements for 
animal identification for herds enrolled in the CWD Herd Certification 
Program. One commenter stated that the identification of individual 
cervids could be problematic, especially if animals have to be 
physically or chemically restrained. The commenter stated that animals 
would be put at serious risk of stress and injury, and identification 
could be cost-prohibitive if large quantities of immobilizing drugs are 
necessary. The commenter asked that we consider a redundant system of 
two industry-accepted herd identification methods, which may include 
ear notches, ear tattoos, ear tags, and transponders.
    As discussed earlier, identification of animals in herds enrolled 
in the CWD Herd Certification Program is essential in order to allow 
for accurate inventory and tracking of the interstate movement of 
animals moved from enrolled herds. Without such information, we cannot 
conduct the surveillance and epidemiological investigations that are

[[Page 35561]]

necessary to determine whether animals from a herd are low risk for 
CWD. We consider the requirements in Sec.  55.23 for two approved forms 
of identification, one of which meets the definition of official animal 
identification in Sec.  55.1, essential to ensure the integrity of the 
animal identification used by herds enrolled in the program. Herds that 
cannot comply will not be eligible to participate in the voluntary CWD 
Herd Certification Program.
    In the July 2006 final rule, part 81 contained restrictions on the 
interstate movement of deer, elk, and moose. The July 2006 final rule 
included in Sec.  81.1 a definition of deer, elk, and moose that 
includes all animals of the genera Odocoileus, Cervus, and Alces and 
their hybrids. This definition is important in part 81 because the 
movement restrictions in that part apply only to deer, elk, and moose.
    One commenter stated that all species in the family Cervidae should 
be included in the rule and in the CWD Herd Certification Program, 
stating that it is prudent to include all cervids until further 
research indicates that such deer cannot be infected with or spread 
CWD.
    We have not expanded coverage to genera in which no species has 
demonstrated susceptibility via natural routes of transmission. To do 
so would extend the requirements of this rule without a sound basis, 
unnecessarily increasing the burden on regulated parties, especially 
zoos with large and varied animal collections. We are prepared to 
extend the definition in the future if new research demonstrates 
additional species in other genera are susceptible to CWD by natural 
routes of transmission. For example, we made a change in the July 2006 
final rule to add moose to the animals covered by the regulations.
    One commenter asked why all deer, elk, and moose herds need to be 
enrolled in the CWD program in order to move interstate when only a 
limited number of cervid species within those respective genera have 
been identified as being CWD susceptible.
    As discussed in the July 2006 final rule, the definition of deer, 
elk, and moose was developed by identifying the species known to be 
susceptible to natural spread of CWD and then expanding coverage to the 
complete genera that include these species, under the assumption that 
related animals in a genus may share similar susceptibility to CWD even 
when all species in the genus have not been shown to be susceptible. 
Based on the progress of knowledge about susceptible species over 
recent years, we believe this to be a scientifically sound and prudent 
assumption. We will continue to evaluate scientific evidence on this 
issue; if necessary at some point in the future, we will adjust the 
scope of our regulations.
    One commenter suggested that we include in Sec.  81.1 a definition 
of certificate, to complement the requirements for a certificate in 
part 81. The commenter suggested that the definition be similar to the 
definition of origin health certificate in 9 CFR part 91, which deals 
with export certification.
    The regulations in Sec.  81.4(a) describe in detail the information 
required on certificates issued for interstate movement in accordance 
with part 81. The definition of origin health certificate in part 91 is 
largely devoted to explaining what information must be included on such 
a certificate. Consequently, we do not see a need to add such a 
definition to part 81.
    In the July 2006 final rule, Sec.  81.3 contains general 
restrictions on the interstate movement of deer, elk, and moose. 
Paragraph (b) of Sec.  81.3 contains restrictions on the interstate 
movement of captive deer, elk, or moose that are captured from a wild 
population for interstate movement and release. Such animals must have 
two forms of animal identification, one of which is official animal 
identification, and a certificate accompanying the animal must document 
the source population to be low risk for CWD, based on a CWD 
surveillance program that is approved by the State Government of the 
receiving State and by APHIS.
    Several commenters expressed concerns about these provisions. These 
commenters largely stated that the interstate movement of animals from 
wild populations should be subject to the same requirements as the 
interstate movement of animals from farmed or captive herds. Some 
commenters stated that captive animals are more thoroughly and 
continually monitored and restricted in their movement, and the 
percentage of infection with CWD in wildlife is much higher than in 
captive cervids. Another commenter noted that State fish and wildlife 
agencies may lack the funding and manpower necessary to conduct 
surveillance, meaning that some States may not be able to monitor the 
animals once they are released in the destination State.
    The requirements for translocation are minimum requirements 
intended to regulate a practice that has been occurring. Without the 
provisions in Sec.  81.3(b), there would have been no Federal CWD-
related restrictions on the interstate movement of such animals. As one 
commenter pointed out, translocation can spread CWD; therefore, we 
determined that it was appropriate to put in place some restrictions on 
this movement.
    We do not consider it practical to make the interstate movement of 
animals from wild populations subject to the same requirements as the 
interstate movement of animals from farmed or captive herds. Animals 
moved interstate from farmed or captive herds must come from a 
Certified herd, meaning they have been inventoried and monitored for 5 
years to determine that they are low risk for CWD. It would be 
impossible to monitor wild animals in the same way we monitor farmed or 
captive animals. We note that, under this final rule, any State will be 
able to further restrict, or prohibit, the movement of animals captured 
from wild populations into the State.
    As discussed earlier in this document, we encourage States to 
continue to perform surveillance in wild populations, both to 
facilitate the interstate movement of animals from wild populations and 
to understand the presence of CWD in their States generally.
    In the July 2006 final rule, paragraph (c) of Sec.  81.3 contained 
requirements for the interstate movement of deer, elk, and moose to 
slaughter. Two commenters asked that States be allowed to place 
additional requirements on such movement; one asked for a requirement 
that States be notified of such movement, and another asked that States 
be allowed to require a permit to ensure that the animals are moved 
directly to a slaughter facility.
    Under this final rule, States can impose both of these additional 
requirements, as well as any other additional requirements they 
determine to be necessary, on movement to slaughter.
    Some commenters asked questions regarding participation in the 
program. One requested that all nonsusceptible species be permitted to 
participate in the CWD Herd Certification Program on a voluntary basis, 
as movement restrictions imposed by States have had economic impacts on 
industry. If this change was made, the commenter asked that visible 
identification not be required for reindeer used for exhibition 
purposes. Another asked why reindeer are not included in the indemnity 
provisions in part 55.
    We did not provide for the participation of species not known to be 
susceptible to CWD in the CWD Herd Certification Program because their 
interstate movement does not pose a risk of spreading CWD. Under this 
final rule, States will continue to be free to

[[Page 35562]]

impose restrictions on the interstate movement of farmed or captive 
cervids for any reason, not just related to CWD.
    We recognize that the regulations may have created some confusion 
on this point. We published an interim rule in the Federal Register on 
February 8, 2002 (Docket No. 00-108-1, 67 FR 5925-5934) that 
established part 55. This rule defined animal as any captive cervid and 
stated that we would pay indemnity for CWD-positive animals, CWD-
exposed animals, and CWD-suspect animals. However, of the animals in 
the family Cervidae, only deer, elk, and moose are known to be 
susceptible to CWD. We have not provided in our regulations for payment 
of indemnity for animals that are not susceptible to CWD, and we do not 
provide for their participation in the CWD Herd Certification Program, 
which is limited to deer, elk, and moose.
    Accordingly, this final rule amends the definition of animal in 
Sec.  55.1 to read: ``Any farmed or captive deer, elk, or moose.'' This 
clarifies the regulations in part 55 and makes the definition of animal 
in that part consistent with the definition of animal in Sec.  81.1.
    The February 2002 interim rule also defined cervid as all members 
of the family Cervidae and hybrids, including deer, elk, moose, 
caribou, reindeer, and related species. While this is an accurate 
definition of the word ``cervid,'' it may have created confusion; the 
provisions of part 55 contain several references to cervids in the 
context of payment of indemnity, but only animals that are susceptible 
to CWD are eligible for indemnity. Accordingly, we are amending the 
definition of cervid as well, to indicate that for the purposes of part 
55, the term ``cervid'' refers to animals in the genera Odocoileus, 
Cervus, and Alces and their hybrids, i.e., deer, elk, and moose. As the 
July 2006 final rule included an identical definition of cervid in part 
81, we are amending that definition as well.
    Two commenters expressed concern that the July 2006 final rule and 
the March 2009 proposed rule did not include specific details on how 
the CWD Herd Certification Program will operate. One stated that the 
rule should refer to a document that specifies the proper management of 
captive herds. Both of these commenters expressed specific concern 
about the lack of information about sample collection and testing.
    Another commenter asked that we provide detailed information on how 
infected herds will be dealt with, i.e., quarantine and testing, 
depopulation, cleaning and disinfection, and fence maintenance 
requirements.
    The optimal methods for most specific aspects of the CWD Herd 
Certification Program will vary among States. For States that already 
have CWD programs, we will review their specific methods and determine 
whether they are adequate to meet the performance standards set out in 
Sec.  55.23(a). We will also develop a program standards document that 
will provide detailed guidance on the implementation of and compliance 
with the regulations, including sample collection and testing and the 
actions taken when a herd is quarantined. This approach gives States 
and herd owners flexibility to achieve performance-based standards and 
will allow us to update the guidance whenever it becomes necessary. For 
example, in the future, new scientific evidence about CWD may indicate 
that different testing or cleaning and disinfection methods are 
appropriate; we will update our guidance if such evidence becomes 
available.
    With respect to sample collection and testing, these activities 
will be overseen by APHIS employees and State representatives. We will 
have systems in place to ensure that people who collect samples are 
performing these activities correctly. Standards for approval of CWD 
testing laboratories are already found in Sec.  55.8(d).
    One commenter expressed concern about zoos' continued ability to 
hold and transport deer, elk, and moose for the purposes of public 
display, outreach education, and cooperative breeding programs. The 
commenter stated that the proposed rule is specific to the deer, elk, 
and moose farming community and does not address the specific needs and 
unique circumstances of the accredited zoo community. The commenter 
proposed that a method be developed to allow the movement of captive 
deer, elk, and moose by and between zoos that are accredited by the 
Association of Zoos and Aquariums, based on that association's 
guidelines for CWD surveillance in captive cervids in zoos.
    The regulations in Sec.  81.3(e) provide for the Administrator to 
issue a permit for the interstate movement of captive deer, elk, or 
moose in cases where the Administrator determines that adequate survey 
and mitigation procedures are in place to prevent dissemination of CWD. 
If a zoo presents evidence establishing that its survey and mitigation 
procedures are adequate to prevent dissemination of CWD, we will allow 
the interstate movement of animals from that zoo. We plan to work with 
zoos on how such movement might occur, and we may develop a proposal 
for stakeholder consideration to establish a zoo movement protocol in 
the future.
    We note that, as this final rule does not preempt State laws and 
regulations that are more restrictive than our regulations, the 
interstate movement of captive deer, elk, and moose between zoos may be 
subject to additional State restrictions or prohibitions.
    One commenter stated that the interstate movement of deer body 
parts should be restricted so that hunted deer parts from areas where 
CWD is endemic do not enter nonendemic areas.
    The movement of deer parts in interstate commerce for human or 
animal consumption is regulated by the Food and Drug Administration. 
States may also have restrictions on the entry of deer parts and 
products.
    One commenter, noting that we stated in the July 2006 final rule 
that there exists no live animal test for CWD, stated that there are 
two live-animal tests available: Tonsillar and rectal biopsies. The 
commenter stated that the tests are currently not recognized by all 
government entities, but could be a beneficial tool for research and 
whole herd surveillance. The commenter also recommended that we require 
all deer, elk, and moose moved interstate to have a live-animal test 
performed at least 30 days before transport. Two commenters stated that 
the regulations should take into account the possibility of an accepted 
live-animal test becoming available.
    These tests have not yet been determined to be effective at 
detecting CWD in live animals, and thus we do not recognize them as 
official tests for use in the CWD Herd Certification Program. We 
certainly encourage research into methods for live-animal CWD 
detection. If and when an official live-animal test becomes available, 
we will amend the regulations to take its availability into account.
    One commenter encouraged us to work with the U.S. Department of the 
Interior to develop disease eradication plans in U.S. wildlife, since 
it is obvious that domestic animal diseases, such as brucellosis in 
bison and elk, bovine tuberculosis in deer and elk, CWD in cervids, and 
scrapie in Big Horn sheep, can greatly impact wildlife and result in 
devastating economic loss to domestic livestock industries and business 
communities that depend on hunting for an economic base.
    Wild deer and elk, as well as other wild animals, are State 
resources, unless they are on Federal land, in which case the 
Department of the Interior may be involved. We work with the States and 
with the Department of the Interior on research and mitigation 
development to help prevent disease transmission between wildlife and 
livestock.

[[Page 35563]]

    Two commenters addressed importation of deer, elk, and moose. One 
stated that we should prohibit the importation of cervids from 
countries where CWD is present until those countries develop a herd 
monitoring and certification program that is equivalent to our program. 
The other stated that CWD-free countries are not likely to have an 
ongoing CWD surveillance program, meaning that it would be appropriate 
to allow the importation of cervids from CWD-free countries without 
requiring a herd surveillance program in the country of origin.
    We restrict the importation of ruminants generally in 9 CFR part 
93, Subpart D, which covers the importation of all ruminants. We plan 
to implement CWD-specific import requirements in the future; when we 
do, they will be equivalent to our requirements for interstate 
movement, in keeping with our commitments as a member of the World 
Trade Organization. Therefore, we agree with the first commenter. With 
respect to the second commenter's recommendation, one component of 
maintaining disease-free status is performing ongoing surveillance to 
confirm continued freedom from the disease, and we would require such 
surveillance for imported cervids.

Miscellaneous Changes

    In the July 2006 final rule, paragraph (b) of Sec.  55.22 indicated 
that owners of farmed or captive deer, elk, or moose herds could apply 
to enroll in a Federal CWD Herd Certification Program if no State CWD 
Herd Certification program exists in the herd's State. Although we were 
prepared to establish such a program in 2006, changes in appropriated 
funds for the CWD program may make it impossible to do so in the 
future. We are amending paragraph (b) to indicate that the option of a 
Federal CWD Herd Certification Program will be subject to the 
availability of appropriated funds. If a Federal CWD Herd Certification 
Program cannot be made available to herd owners, they will have to 
participate in an Approved State CWD Herd Certification Program in 
order for their herds to achieve Certified status and thus be eligible 
to move interstate under part 81.
    In the July 2006 final rule, paragraph (a)(10) of Sec.  55.23 
indicates that States are responsible for maintaining certain data in 
the CWD National Database administered by APHIS, or in a State database 
approved by the Administrator as compatible with the CWD National 
Database. However, references to the CWD National Database in 
Sec. Sec.  55.25 and 81.2 do not also provide for the use of a State 
database that is compatible with the CWD National Database. 
Accordingly, we are amending those references to the CWD National 
Database to indicate that the required data may be found either in the 
CWD National Database or in an approved State database.
    In this final rule, we are revising the definition of Administrator 
in Sec.  55.1 to read: ``The Administrator, Animal and Plant Health 
Inspection Service, or any person authorized to act for the 
Administrator.'' The definition of Administrator in Sec.  55.1 
currently limits those who can act for the Administrator to APHIS 
employees, but State representatives may be authorized in some cases to 
fulfill tasks assigned to the Administrator in the context of operating 
their State CWD Herd Certification Programs. We are also adding this 
definition of Administrator to Sec.  81.1.
    In the July 2006 final rule, we revised the definition of CWD-
positive animal to state that such an animal must have its diagnosis 
confirmed by means of two official CWD tests. In the Background section 
of that final rule, we stated that we expect that, in most cases, the 
first test would be conducted by a State, Federal, or university 
laboratory approved to conduct CWD official tests in accordance with 
Sec.  55.8, and, if the first test was positive, a second, confirmatory 
test would be conducted at NVSL to confirm the diagnosis of CWD. In 
some cases, both the initial and confirmatory test may be conducted at 
NVSL.
    However, stating that two official tests are conducted could 
indicate to readers that two different types of official tests must be 
conducted in order for an animal to be determined to be CWD-positive, 
which is not correct; our intent was to indicate that there must be two 
positive results, which may be from the same type of test. The 
definition also does not indicate that NVSL is the confirmatory 
laboratory. The intent behind our changes was to indicate that an 
animal will be determined to be a CWD-positive animal only after an 
initial positive result and subsequent official confirmatory testing 
conducted by NVSL. As indicated in the July 2006 final rule, official 
confirmatory testing by NVSL is required whether the initial test was 
conducted by an approved laboratory or by NVSL itself. Therefore, we 
are amending the definition of CWD-positive animal to indicate that 
such an animal must have its diagnosis of CWD established through 
official confirmatory testing conducted by NVSL.
    We are also reorganizing Sec.  55.25 by moving the second sentence 
to the end of the section, to improve clarity.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

IV. Compliance With Other Statutes and Executive Orders

Executive Orders 12866 and 13563 and Regulatory Flexibility Act

    This final rule has been determined to be significant for the 
purposes of Executive Order 12866 and, therefore, has been reviewed by 
the Office of Management and Budget.
    We have prepared an economic analysis for this rule. The economic 
analysis provides a cost-benefit analysis, as required by Executive 
Orders 12866 and 13563, which direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, and equity). Executive Order 13563 emphasizes the importance 
of quantifying both costs and benefits, of reducing costs, of 
harmonizing rules, and of promoting flexibility. The economic analysis 
also provides a final regulatory flexibility analysis that examines the 
potential economic effects of this rule on small entities, as required 
by the Regulatory Flexibility Act. The economic analysis is summarized 
below. Copies of the full analysis are available on the Regulations.gov 
Web site (see footnote 1 in this document for a link to 
Regulations.gov) or by contacting the person listed under FOR FURTHER 
INFORMATION CONTACT.
    This final rule amends a suspended final rule published in July 
2006, for the control of chronic wasting disease (CWD) in farmed or 
captive cervids (deer, elk, and moose) in the United States. The July 
2006 final rule established a voluntary Herd Certification Program that 
included CWD monitoring and testing requirements and set interstate 
movement restrictions. APHIS suspended the July 2006 final rule 
indefinitely to reconsider several of its requirements in response to 
petitions from the public and comments on those petitions. In this 
document, we examine expected benefits and costs of the July 2006 final 
rule, as amended by this final rule. With publication of this final 
rule and concurrent removal of the

[[Page 35564]]

suspension of the July 2006 final rule, farmed or captive deer, elk, 
and moose herd owners who choose to participate in the Herd 
Certification Program will have to meet program requirements for animal 
identification, testing, and herd management. With certain exceptions, 
only deer, elk, and moose from Certified herds will be eligible for 
interstate movement.
    Amendments to the July 2006 final rule include the following: (i) 
The Federal CWD regulations will set minimum requirements for 
interstate movement, while States will be allowed to impose additional 
requirements; (ii) cervids allowed to be moved interstate (other than 
ones moving to slaughter or for research), must be from Certified herds 
that have been monitored for a period of at least 5 years and that have 
not been epidemiologically linked to herds where CWD has been 
diagnosed, or captured from a wild cervid population that has been 
documented to be low risk for CWD based on a surveillance program; 
(iii) farmed or captive cervids, when en route to another State, will 
be allowed to transit through States that otherwise ban or restrict 
their entry; (iv) a physical inventory of the animals will be required 
at the time a herd is enrolled in a CWD certification program and 
thereafter the animals will need to be physically assembled for 
inventory within 3 years of the last physical inventory; (v) certified 
cervids that die or are killed at slaughter or on shooter operations 
will be required to be tested for CWD; and (vi) there will be optional 
confirmatory DNA test provisions for animals that test CWD-positive.
    Implementation of the July 2006 final rule as amended by this final 
rule is expected to result in both positive and negative economic 
effects for herd owners and States, with benefits and costs depending 
on herd owners' existing management practices and marketing activities 
and States' current provisions with respect to CWD control. Overall 
benefits of the rule are expected to exceed its costs. Foremost, the 
July 2006 rule, as amended, will help prevent the spread of CWD among 
States and facilitate interstate movement of healthy cervids. The Herd 
Certification Program will also promote U.S. producers' access to 
international markets for cervid products such as antler velvet.
    The regulations will provide uniform minimum requirements for 
interstate movement. This final rule will allow States to enact and 
administer stricter CWD status requirements for cervids entering from 
other States. As at present, herd owners' interstate marketing 
decisions may need to account for dissimilar State CWD certification 
regulations.
    Some herd owners also may be adversely affected by the 5-year 
monitoring requirement for interstate movement; however, available 
research indicates that this minimum period of monitoring is necessary 
to provide an adequate level of protection against the spread of CWD. 
Most researchers agree that CWD manifests itself within 5 years if the 
disease is present in a herd of farmed or captive cervids. Many herd 
owners have been participating in state level CWD HCP's for at least 5 
years and will have met this requirement as a result of being enrolled 
in a state program that becomes an Approved State HCP in the national 
CWD HCP program.
    Producers who participate in the Herd Certification Program will be 
required to maintain a complete inventory of their herds, with 
verification by APHIS or State officials. The annual inventory cost is 
estimated to average about $25 to $30 per deer or elk, including the 
animals' physical inventory once every three years and use of eartags 
for identification. (We do not know of any farmed or captive moose 
herds.) Values of farmed or captive deer and elk range widely, 
depending on the type of animal and market conditions. Based on average 
per animal values of $2,000 for deer and $2,200 for elk, annual 
inventory costs are estimated to average between 1.25 and 1.50 percent 
of the value of a farmed or captive deer and to between 1.14 and 1.36 
percent of the value of a farmed or captive elk.
    The requirement that cervids from herds participating in the 
certification program be tested for CWD when they die or are killed 
(including slaughter) will entail submission of the carcass or whole 
head for tissue sampling and testing or collection of the tissue sample 
by an approved veterinarian. The estimated cost is about $150 per 
sample, equivalent to about 8 percent of the average value of a farmed 
or captive deer and about 7 percent of the average value of a farmed or 
captive elk. CWD testing of cervids is recognized by APHIS, the States, 
and cervid herd owners as essential to successful control of this 
disease.
    Herd owners will have the option of using confirmatory DNA testing 
provisions to verify that the sample tested is from the animal in 
question, although APHIS is confident that the existing chain-of-
custody processes for CWD testing are effective. Owners who choose 
confirmatory DNA testing will consider it a benefit, as evidenced by 
their voluntary payment for this test.
    Most cervid operations are small entities. The rule will have a 
positive overall economic impact on affected entities large and small, 
and the U.S. cervid industries generally, in controlling the spread of 
CWD and facilitating interstate and international trade in cervids and 
cervid products.

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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts 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.

Executive Order 13175

    APHIS sent a letter notifying all 565 federally recognized Tribes 
of the proposed changes to the CWD regulations. APHIS requested from 
Tribes all comments based on potential impacts and outcomes concerning 
the March 2009 proposed rule. APHIS offered to conduct conference calls 
or formal consultations with Tribal leaders if requested. APHIS did not 
receive any comments from Tribes regarding the March 2009 proposed 
rule.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), we published a notice in the Federal 
Register on January 24, 2012 (77 FR 3434-3435, Docket No. APHIS-2011-
0032), announcing our intention to reinstate the information collection 
associated with the July 2006 final rule and soliciting comments on it. 
We are asking the Office of Management and Budget (OMB) to approve our 
use of this information collection for 3 years. When OMB notifies us of 
its decision, we will publish a document in the Federal Register 
providing notice of the assigned OMB control number or, if approval is 
denied, providing notice of what action we plan to take.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and

[[Page 35565]]

other information technologies, to provide increased opportunities for 
citizen access to Government information and services, and for other 
purposes. For information pertinent to E-Government Act compliance 
related to this rule, please contact Mrs. Celeste Sickles, APHIS' 
Information Collection Coordinator, at (301) 851-2908.

List of Subjects

9 CFR Part 55

    Animal diseases, Cervids, Chronic wasting disease, Deer, Elk, 
Indemnity payments, Moose.

9 CFR Part 81

    Animal diseases, Cervids, Deer, Elk, Moose, Quarantine, Reporting 
and recordkeeping requirements, Transportation.

    Accordingly, for the reasons set forth in the preamble under the 
authority at 7 U.S.C. 8301-8317 and 7 CFR 2.22, 2.80, and 371.4, we are 
announcing the effective date of the final rule published on July 21, 
2006 (71 FR 41682) and further amending 9 CFR Chapter I as follows:

PART 55--CONTROL OF CHRONIC WASTING DISEASE

0
1. The authority citation for part 55 is revised to read as follows:

    Authority:  7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.


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2. Section 55.1 is amended as follows:
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a. In the definition of State representative, by removing the words 
``under a cooperative agreement with the United States Department of 
Agriculture''.
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b. By revising the definitions of Administrator, animal, cervid, CWD-
exposed animal, CWD-positive animal, CWD-suspect animal, herd plan, 
official animal identification, and premises identification number 
(PIN) to read as set forth below.
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c. By adding definitions for accredited veterinarian and National 
Uniform Eartagging System, in alphabetical order, to read as set forth 
below.


Sec.  55.1  Definitions.

    Accredited veterinarian. A veterinarian approved by the 
Administrator in accordance with part 161 of this chapter to perform 
functions specified in subchapters B, C, and D of this chapter.
    Administrator. The Administrator, Animal and Plant Health 
Inspection Service, or any person authorized to act for the 
Administrator.
    Animal. Any farmed or captive deer, elk, or moose.
* * * * *
    Cervid. All members of the family Cervidae and hybrids, including 
deer, elk, moose, caribou, reindeer, and related species. For the 
purposes of this part, the term ``cervid'' refers specifically to 
cervids susceptible to CWD. These are animals in the genera Odocoileus, 
Cervus, and Alces and their hybrids, i.e., deer, elk, and moose.
    CWD-exposed animal. An animal that is part of a CWD-positive herd, 
or that has been exposed to a CWD-positive animal or contaminated 
premises within the previous 5 years.
    CWD-positive animal. An animal that has had a diagnosis of CWD 
established through official confirmatory testing conducted by the 
National Veterinary Services Laboratories.
* * * * *
    CWD-suspect animal. An animal for which an APHIS employee or State 
representative has determined that unofficial CWD test results, 
laboratory evidence or clinical signs suggest a diagnosis of CWD, but 
for which official laboratory results have been inconclusive or not yet 
conducted.
* * * * *
    Herd plan. A written herd and/or premises management agreement 
developed by APHIS in collaboration with the herd owner, State 
representatives, and other affected parties. The herd plan will not be 
valid until it has been reviewed and signed by the Administrator, the 
State representative, and the herd owner. A herd plan sets out the 
steps to be taken to eradicate CWD from a CWD-positive herd, to control 
the risk of CWD in a CWD-exposed or CWD-suspect herd, or to prevent 
introduction of CWD into that herd or any other herd. A herd plan will 
require specified means of identification for each animal in the herd; 
regular examination of animals in the herd by a veterinarian for 
clinical signs of disease; reporting to a State or APHIS representative 
of any clinical signs of a central nervous system disease or chronic 
wasting condition in the herd; maintaining records of the acquisition 
and disposition of all animals entering or leaving the herd, including 
the date of acquisition or removal, name and address of the person from 
whom the animal was acquired or to whom it was disposed; and the cause 
of death, if the animal died while in the herd. A herd plan may also 
contain additional requirements to prevent or control the possible 
spread of CWD, depending on the particular circumstances of the herd 
and its premises, including but not limited to depopulation of the 
herd, specifying the time for which a premises must not contain cervids 
after CWD-positive, -exposed, or -suspect animals are removed from the 
premises; fencing requirements; selective culling of animals; 
restrictions on sharing and movement of possibly contaminated livestock 
equipment; premises cleaning and disinfection requirements; or other 
requirements. A herd plan may be reviewed and changes to it suggested 
at any time by any party signatory to it, in response to changes in the 
situation of the herd or premises or improvements in understanding of 
the nature of CWD epidemiology or techniques to prevent its spread. The 
revised herd plan will become effective after it is reviewed by the 
Administrator and signed by the Administrator, the State 
representative, and the herd owner.
* * * * *
    National Uniform Eartagging System. A numbering system for the 
official identification of individual animals in the United States 
providing a nationally unique identification number for each animal. 
The National Uniform Eartagging System employs an eight- or nine-
character alphanumeric format, consisting of a two-number State or 
territory code, followed by two or three letters and four additional 
numbers. Official APHIS disease control programs may specify which 
format to employ.
* * * * *
    Official animal identification. A device or means of animal 
identification approved for use under this part by APHIS to uniquely 
identify individual animals. Examples of approved official animal 
identification devices are listed in Sec.  55.25. The official animal 
identification must include a nationally unique animal identification 
number that adheres to one of the following numbering systems:
    (1) National Uniform Eartagging System. The CWD program allows the 
use of either the eight-character or nine-character format for cervids.
    (2) Animal identification number (AIN).
    (3) Premises-based number system. The premises-based number system 
combines an official premises identification number (PIN), as defined 
in this section, with a producer's livestock production numbering 
system to provide a unique identification number. The PIN and the 
production number must both appear on the official tag.

[[Page 35566]]

    (4) Any other numbering system approved by the Administrator for 
the identification of animals in commerce.
* * * * *
    Premises identification number (PIN). A nationally unique number 
assigned by a State, Tribal, and/or Federal animal health authority to 
a premises that is, in the judgment of the State, Tribal, and/or 
Federal animal health authority, a geographically distinct location 
from other premises. The premises identification number is associated 
with an address, geospatial coordinates, and/or location descriptors 
which provide a verifiably unique location. The premises identification 
number may be used in conjunction with a producer's own livestock 
production numbering system to provide a unique identification number 
for an animal. It may also be used as a component of a group/lot 
identification number. The premises identification number may consist 
of:
    (1) The State's two-letter postal abbreviation followed by the 
premises' assigned number; or
    (2) A seven-character alphanumeric code, with the right-most 
character being a check digit. The check digit number is based upon the 
ISO 7064 Mod 36/37 check digit algorithm.
* * * * *

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3. In part 55, subpart B is revised to read as follows:
Subpart B--Chronic Wasting Disease Herd Certification Program
Sec.
55.21 Administration.
55.22 Participation and enrollment.
55.23 Responsibilities of States and enrolled herd owners.
55.24 Herd status.
55.25 Animal identification.

Subpart B--Chronic Wasting Disease Herd Certification Program


Sec.  55.21  Administration.

    The CWD Herd Certification Program is a cooperative effort between 
APHIS, State animal health and wildlife agencies, and deer, elk, and 
moose owners. APHIS coordinates with these State agencies to encourage 
deer, elk, and moose owners to certify their herds as low risk for CWD 
by being in continuous compliance with the CWD Herd Certification 
Program standards.


Sec.  55.22  Participation and enrollment.

    (a) Participation by States. Any State that operates a State 
program to certify the CWD status of deer, elk, or moose may request 
the Administrator to designate the State program as an Approved State 
CWD Herd Certification Program. The Administrator will approve or 
disapprove a State program in accordance with Sec.  55.23(a). In States 
with an Approved State CWD Herd Certification Program, program 
activities will be conducted in accordance with the guidelines of that 
program as long as the State program meets the minimum requirements of 
this part. A list of Approved State CWD Herd Certification Programs may 
be obtained by writing to the National Center for Animal Health 
Program, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1235.
    (b) Participation by owners. Any owner of a farmed or captive deer, 
elk, or moose herd may apply to enroll in an Approved State CWD Herd 
Certification Program by sending a written request to the appropriate 
State agency. Subject to the availability of appropriated funds for a 
Federal CWD Herd Certification Program, the owner may apply to the 
APHIS veterinarian in charge if no Approved State CWD Herd 
Certification Program exists in the herd's State. APHIS or the State 
will determine the herd's eligibility, and if needed will require the 
owner to submit more details about the herd animals and operations. An 
application for participation may be denied if APHIS or the State 
determines that the applicant has previously violated State or Federal 
laws or regulations for livestock, and that the nature of the violation 
indicates that the applicant may not faithfully comply with the 
requirements of the CWD Herd Certification Program. If the enrolling 
herd is a CWD-positive herd or CWD-exposed herd, immediately after 
enrollment it must begin complying with a herd plan developed in 
accordance with Sec.  55.24. After determining that the herd is 
eligible to participate in accordance with this paragraph, APHIS or the 
appropriate State agency will send the herd owner a notice of 
enrollment that includes the herd's enrollment date. Inquiries 
regarding which herds are participating in the CWD Herd Certification 
Program and their certification should be directed to the State 
representative of the relevant State.
    (1) Enrollment date. With the exceptions listed in this paragraph, 
the enrollment date for any herd that joins the CWD Herd Certification 
Program after August 13, 2012 will be the date the herd is approved for 
participation.
    (i) For herds already participating in State CWD programs, the 
enrollment date will be the first day that the herd participated in a 
State program that APHIS subsequently determines qualifies as an 
Approved State CWD Herd Certification Program in accordance with Sec.  
55.23(a) of this part.
    (ii) For herds that enroll directly in the Federal CWD Herd 
Certification Program, which is allowed only when there is no Approved 
State CWD Herd Certification Program in their State and which is 
subject to the availability of appropriated funds, the enrollment date 
will be the earlier of:
    (A) The date APHIS approves enrollment; or
    (B) If APHIS determines that the herd owner has maintained the herd 
in a manner that substantially meets the conditions specified in Sec.  
55.23(b) for herd owners, the first day that the herd participated in 
such a program. However, in such cases the enrollment date may not be 
set at a date more than 3 years prior to the date that APHIS approved 
enrollment of the herd.
    (iii) For new herds that were formed from and contain only animals 
from herds enrolled in the CWD Herd Certification Program, the 
enrollment date will be the latest enrollment date for any source herd 
for the animals.
    (2) [Reserved]

(Approved by the Office of Management and Budget under control 
number 0579-0237)

Sec.  55.23  Responsibilities of States and enrolled herd owners.

    (a) Approval of State programs and responsibilities of States. In 
reviewing a State program's eligibility to be designated an Approved 
State CWD Herd Certification Program, the Administrator will evaluate a 
written statement from the State that describes the State's CWD control 
and deer, elk, and moose herd certification activities and that cites 
relevant State statutes, regulations, and directives pertaining to 
animal health activities and reports and publications of the State. In 
determining whether the State program qualifies, the Administrator will 
determine whether the State:
    (1) Has the authority, based on State law or regulation, to 
restrict the intrastate movement of all CWD-positive, CWD-suspect, and 
CWD-exposed animals.
    (2) Has the authority, based on State law or regulation, to require 
the prompt reporting of any animal suspected of having CWD and test 
results for any animals tested for CWD to State or Federal animal 
health authorities.
    (3) Has, in cooperation with APHIS personnel, drafted and signed a 
memorandum of understanding with APHIS that delineates the respective 
roles of the State and APHIS in CWD Herd Certification Program 
implementation.
    (4) Has placed all known CWD-positive, CWD-exposed, and CWD-suspect 
animals and herds under movement restrictions, with movement

[[Page 35567]]

of animals from them only for destruction or under permit.
    (5) Has effectively implemented policies to:
    (i) Promptly investigate all animals reported as CWD-suspect 
animals;
    (ii) Designate herds as CWD-positive, CWD-exposed, or CWD-suspect 
and promptly restrict movement of animals from the herd after an APHIS 
employee or State representative determines that the herd contains or 
has contained a CWD-positive animal;
    (iii) Remove herd movement restrictions only after completion of a 
herd plan agreed upon by the State representative, APHIS, and the 
owner;
    (iv) Conduct an epidemiologic investigation of CWD-positive, CWD-
exposed, and CWD-suspect herds that includes the designation of suspect 
and exposed animals and that identifies animals to be traced;
    (v) Conduct tracebacks of CWD-positive animals and traceouts of 
CWD-exposed animals and report any out-of-State traces to the 
appropriate State promptly after receipt of notification of a CWD-
positive animal; and
    (vi) Conduct tracebacks based on slaughter or other sampling 
promptly after receipt of notification of a CWD-positive animal at 
slaughter.
    (6) Effectively monitors and enforces State quarantines and State 
reporting laws and regulations for CWD.
    (7) Has designated at least one State animal health official, or 
has worked with APHIS to designate an APHIS official, to coordinate CWD 
Herd Certification Program activities in the State.
    (8) Has programs to educate those engaged in the interstate 
movement of deer, elk, and moose regarding the identification and 
recordkeeping requirements of this part.
    (9) Requires, based on State law or regulation, and effectively 
enforces identification of all animals in herds participating in the 
CWD Herd Certification Program;
    (10) Maintains in the CWD National Database administered by APHIS, 
or in a State database approved by the Administrator as compatible with 
the CWD National Database, the State's:
    (i) Premises information and assigned premises numbers;
    (ii) Individual animal information on all deer, elk, and moose in 
herds participating in the CWD Herd Certification Program in the State;
    (iii) Individual animal information on all out-of-State deer, elk, 
and moose to be traced; and
    (iv) Accurate herd status data.
    (11) Requires that tissues from all CWD-exposed or CWD-suspect 
animals that die or are depopulated or otherwise killed be submitted to 
a laboratory authorized by the Administrator to conduct official CWD 
tests and requires appropriate disposal of the carcasses of CWD-
positive, CWD-exposed, and CWD-suspect animals.
    (b) Responsibilities of enrolled herd owners. Herd owners who 
enroll in the CWD Herd Certification Program agree to maintain their 
herds in accordance with the following conditions:
    (1) Each animal in the herd must be identified using means of 
animal identification specified in Sec.  55.25. All animals in an 
enrolled herd must be identified before reaching 12 months of age. In 
addition, all animals of any age in an enrolled herd must be identified 
before being moved from the herd premises. In addition, all animals in 
an enrolled herd must be identified before the inventory required under 
paragraph (b)(4) of this section, and animals found to be in violation 
of this requirement during the inventory must be identified during or 
after the inventory on a schedule specified by the APHIS employee or 
State representative conducting the inventory;
    (2) The herd premises must have perimeter fencing adequate to 
prevent ingress or egress of cervids. This fencing must also comply 
with any applicable State regulations;
    (3) The owner must immediately report to an APHIS employee or State 
representative all animals that escape or disappear, and all deaths 
(including animals killed on premises maintained for hunting and 
animals sent to slaughter) of deer, elk, and moose in the herd aged 12 
months or older; Except that, APHIS employees or State representatives 
may approve reporting schedules other than immediate notification when 
herd conditions warrant it in the opinion of both APHIS and the State. 
The report must include the identification numbers of the animals 
involved and the estimated time and date of the death, escape, or 
disappearance. For animals that die (including animals killed on 
premises maintained for hunting and animals sent to slaughter), the 
owner must inform an APHIS or State representative and must make the 
carcasses of the animals available for tissue sampling and testing in 
accordance with instructions from the APHIS or State representative. In 
cases where animals escape or disappear and thus are not available for 
tissue sampling and testing, or when the owner provides samples that 
are of such poor quality that they cannot be tested for CWD, an APHIS 
representative will investigate whether the unavailability of animals 
or usable samples for testing constitutes a failure to comply with 
program requirements and will affect the herd's status in the CWD Herd 
Certification Program;
    (4) The owner must maintain herd records that include a complete 
inventory of animals that states the species, age, and sex of each 
animal, the date of acquisition and source of each animal that was not 
born into the herd, the date of disposal and destination of any animal 
removed from the herd, and all individual identification numbers (from 
tags, tattoos, electronic implants, etc.) associated with each animal. 
Upon request by an APHIS employee or State representative, the owner 
must allow either of these officials or a designated accredited 
veterinarian access to the premises and herd to conduct an inventory. 
The owner will be responsible for assembling, handling, and restraining 
the animals and for all costs incurred to present the animals for 
inspection. The APHIS employee or State representative may order either 
an inventory that consists of review of herd records with visual 
examination of an enclosed group of animals, or a complete physical 
herd inventory with verification to reconcile all animals and 
identifications with the records maintained by the owner. In the latter 
case, the owner must present the entire herd for inspection under 
conditions where the APHIS employee, State representative, or 
accredited veterinarian can safely read all identification on the 
animals. During inventories, the owner must cooperate with the 
inspector to resolve any discrepancies to the satisfaction of the 
person performing the inventory. Inventory of a herd will be conducted 
no more frequently than once per year, unless an APHIS employee, State 
representative, or accredited veterinarian determines that more 
frequent inventories are needed based on indications that the herd may 
not be in compliance with CWD Herd Certification Program requirements. 
A complete physical herd inventory must be performed on a herd in 
accordance with this paragraph at the time a herd is enrolled in the 
CWD Herd Certification Program; Except that, APHIS may accept a 
complete physical herd inventory performed by an APHIS employee, State 
representative, or accredited veterinarian not more than 1 year before 
the herd's date of enrollment in the CWD Herd Certification Program as 
fulfilling the requirement for an initial inventory. In addition, a 
complete physical herd inventory must be performed for all herds 
enrolled in

[[Page 35568]]

the CWD Herd Certification Program no more than 3 years after the last 
complete physical herd inventory for the herd;
    (5) If an owner wishes to maintain separate herds, he or she must 
maintain separate herd inventories, records, working facilities, water 
sources, equipment, and land use. There must be a buffer zone of at 
least 30 feet between the perimeter fencing around separate herds, and 
no commingling of animals may occur. Movement of animals between herds 
must be recorded as if they were separately owned herds;
    (6) New animals may be introduced into the herd only from other 
herds enrolled in the CWD Herd Certification Program. If animals are 
received from an enrolled herd with a lower program status, the 
receiving herd will revert to that lower program status. If animals are 
obtained from a herd not participating in the program, then the 
receiving herd will be required to start over in the program.

(Approved by the Office of Management and Budget under control 
number 0579-0237)

Sec.  55.24  Herd status.

    (a) Initial and subsequent status. When a herd is first enrolled in 
the CWD Herd Certification Program, it will be placed in First Year 
status; except that, if the herd is composed solely of animals obtained 
from herds already enrolled in the Program, the newly enrolled herd 
will have the same status as the lowest status of any herd that 
provided animals for the new herd. If the herd continues to meet the 
requirements of the CWD Herd Certification Program, each year, on the 
anniversary of the enrollment date the herd status will be upgraded by 
1 year; i.e., Second Year status, Third Year status, Fourth Year 
status, and Fifth Year status. One year from the date a herd is placed 
in Fifth Year status, the herd status will be changed to Certified, and 
the herd will remain in Certified status as long as it is enrolled in 
the program, provided its status is not lost or suspended in accordance 
with this section.
    (b) Loss or suspension of herd status. (1) If a herd is designated 
a CWD-positive herd or a CWD-exposed herd, it will immediately lose its 
program status and may only reenroll after entering into a herd plan.
    (2) If a herd is designated a CWD-suspect herd, a trace back herd, 
or a trace forward herd, it will immediately be placed in Suspended 
status pending an epidemiologic investigation by APHIS or a State 
animal health agency. If the epidemiologic investigation determines 
that the herd was not commingled with a CWD-positive animal, the herd 
will be reinstated to its former program status, and the time spent in 
Suspended status will count toward its promotion to the next herd 
status level.
    (i) If the epidemiologic investigation determines that the herd was 
commingled with a CWD-positive animal, the herd will lose its program 
status and will be designated a CWD-exposed herd.
    (ii) If the epidemiological investigation is unable to make a 
determination regarding the exposure of the herd, because the necessary 
animal or animals are no longer available for testing (i.e., a trace 
animal from a known positive herd died and was not tested) or for other 
reasons, the herd status will continue as Suspended unless and until a 
herd plan is developed for the herd. If a herd plan is developed and 
implemented, the herd will be reinstated to its former program status, 
and the time spent in Suspended status will count toward its promotion 
to the next herd status level; Except that, if the epidemiological 
investigation finds that the owner of the herd has not fully complied 
with program requirements for animal identification, animal testing, 
and recordkeeping, the herd will be reinstated into the CWD Herd 
Certification Program at the First Year status level, with a new 
enrollment date set at the date the herd entered into Suspended status. 
Any herd reinstated after being placed in Suspended status must then 
comply with the requirements of the herd plan as well as the 
requirements of the CWD Herd Certification Program. The herd plan will 
require testing of all animals that die in the herd for any reason, 
regardless of the age of the animal, may require movement restrictions 
for animals in the herd based on epidemiologic evidence regarding the 
risk posed by the animals in question, and may include other 
requirements found necessary to control the risk of spreading CWD.
    (3) If an APHIS or State representative determines that animals 
from a herd enrolled in the program have commingled with animals from a 
herd with a lower program status, the herd with the higher program 
status will be reduced to the status of the herd with which its animals 
commingled.
    (c) Cancellation of enrollment by Administrator. The Administrator 
may cancel the enrollment of an enrolled herd by giving written notice 
to the herd owner. In the event of such cancellation, any herd enrolled 
in the CWD Herd Certification Program by that herd owner may not reach 
Certified status until 5 years after the herd owner's new application 
for enrollment is approved by APHIS, regardless of the status of the 
animals of which the herd is composed. The Administrator may cancel 
enrollment after determining that the herd owner failed to comply with 
any requirements of this subpart. Before enrollment is canceled, an 
APHIS representative will inform the herd owner of the reasons for the 
proposed cancellation.
    (1) Herd owners may appeal designation of an animal as CWD-
positive, cancellation of enrollment of a herd, or loss or suspension 
of herd status by writing to the Administrator within 10 days after 
being informed of the reasons for the action. The appeal must include 
all of the facts and reasons upon which the herd owner relies to show 
that the reasons for the action are incorrect or do not support the 
action. Specifically, to appeal designation of an animal as CWD-
positive, the owner may present as evidence the results of a DNA test 
requested and paid for by the owner to determine whether previous 
official CWD test results were correctly associated with an animal that 
belonged to the owner. If the owner intends to present such test 
results as evidence, he or she shall request the tests and state this 
in the written notice sent to the Administrator. In such cases the 
Administrator may postpone a decision on the appeal for a reasonable 
period pending receipt of such test results. To this end, laboratories 
approved under Sec.  55.8 are authorized to conduct DNA tests to 
compare tissue samples tested for CWD to samples from tissues that were 
collected at the same time from the same animal and are attached to an 
official identification device. Such DNA tests are available only if 
the animal owner arranged to submit animal tissue attached to an 
official identification device along with the other tissues that were 
collected for the official CWD test. The Administrator will grant or 
deny the appeal in writing as promptly as circumstances permit, stating 
the reason for his or her decision. If the Administrator grants an 
appeal of the status of a CWD-positive animal, the animal shall be 
redesignated as CWD-suspect pending further investigation to establish 
the final status of the animal and its herd. If there is a conflict as 
to any material fact, a hearing will be held to resolve the conflict. 
Rules of practice concerning the hearing will be adopted by the 
Administrator.
    (2) [Reserved]
    (d) Herd status of animals added to herds. A herd may add animals 
from herds with the same or a higher herd status in the CWD Herd 
Certification

[[Page 35569]]

Program with no negative impact on the certification status of the 
receiving herd.\5\ If animals are acquired from a herd with a lower 
herd status, the receiving herd reverts to the program status of the 
sending herd. If a herd participating in the CWD Herd Certification 
Program acquires animals from a nonparticipating herd, the receiving 
herd reverts to First Year status with a new enrollment date of the 
date of acquisition of the animal.
---------------------------------------------------------------------------

    \5\ Note that in addition to this requirement, Sec.  81.3 of 
this chapter restricts the interstate movement of farmed and captive 
deer, elk, and moose based on their status in the CWD Herd 
Certification Program.

(Approved by the Office of Management and Budget under control 
---------------------------------------------------------------------------
number 0579-0237.)

Sec.  55.25  Animal identification.

    Each animal required to be identified by this subpart must have at 
least two forms of animal identification attached to the animal. One of 
the animal identifications must be official animal identification as 
defined in this part, with a nationally unique animal identification 
number that is linked to that animal in the CWD National Database or in 
an approved State database. The second animal identification must be 
unique for the individual animal within the herd and also must be 
linked to that animal and herd in the CWD National Database or in an 
approved State database. The means of animal identification must be 
approved for this use by APHIS, and must be an electronic implant, 
flank tattoo, ear tattoo, tamper-resistant ear tag, or other device 
approved by APHIS.

(Approved by the Office of Management and Budget under control 
number 0579-0237)


0
4. Part 81 is revised to read as follows:

PART 81--CHRONIC WASTING DISEASE IN DEER, ELK, AND MOOSE

Sec.
81.1 Definitions.
81.2 Identification of deer, elk, and moose in interstate commerce.
81.3 General restrictions.
81.4 Issuance of certificates.
81.5 Movement of deer, elk, or moose through a State to another 
State.
81.6 Federal preemption of State and local laws and regulations with 
respect to CWD.

    Authority:  7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.


Sec.  81.1  Definitions.

    These definitions are applicable to this part:
    Accredited veterinarian. A veterinarian approved by the 
Administrator in accordance with part 161 of this chapter to perform 
functions specified in subchapters B, C, and D of this chapter.
    Administrator. The Administrator, Animal and Plant Health 
Inspection Service, or any person authorized to act for the 
Administrator.
    Animal. Any farmed or captive deer, elk, or moose.
    Animal and Plant Health Inspection Service (APHIS). The Animal and 
Plant Health Inspection Service of the United States Department of 
Agriculture.
    Animal identification. A device or means of animal identification 
approved for use under this part by APHIS. Examples of animal 
identification devices that APHIS has approved are listed in Sec.  
55.25 of this chapter.
    Animal identification number (AIN). A numbering system for the 
official identification of individual animals in the United States. The 
AIN contains 15 digits, with the first 3 being the country code (840 
for the United States), the alpha characters USA, or the numeric code 
assigned to the manufacturer of the identification device by the 
International Committee on Animal Recording.
    APHIS employee. Any individual employed by the Animal and Plant 
Health Inspection Service who is authorized by the Administrator to do 
any work or perform any duty in connection with the control and 
eradication of disease.
    Cervid. All members of the family Cervidae and hybrids, including 
deer, elk, moose, caribou, reindeer, and related species. For the 
purposes of this part, the term ``cervid'' refers specifically to 
cervids susceptible to CWD. These are animals in the genera Odocoileus, 
Cervus, and Alces and their hybrids, i.e., deer, elk, and moose.
    Chronic wasting disease (CWD). A transmissible spongiform 
encephalopathy of cervids. Clinical signs in affected animals include, 
but are not limited to, loss of body condition, behavioral changes, 
excessive salivation, increased drinking and urination, depression, and 
eventual death.
    CWD Herd Certification Program. The Chronic Wasting Disease Herd 
Certification Program established in part 55 of this chapter.
    Deer, elk, and moose. All animals in the genera Odocoileus, Cervus, 
and Alces and their hybrids.
    Farmed or captive. Privately or publicly maintained or held for 
economic or other purposes within a perimeter fence or confined area, 
or captured from a wild population for interstate movement and release.
    National Uniform Eartagging System. A numbering system for the 
official identification of individual animals in the United States 
providing a nationally unique identification number for each animal. 
The National Uniform Eartagging System employs an eight- or nine-
character alphanumeric format, consisting of a two-number State or 
territory code, followed by two or three letters and four additional 
numbers. Official APHIS disease control programs may specify which 
format to employ.
    Official animal identification. A device or means of animal 
identification approved for use under this part by APHIS to uniquely 
identify individual animals. Examples of approved official animal 
identification devices are listed in Sec.  55.25 of this chapter. The 
official animal identification must include a nationally unique animal 
identification number that adheres to one of the following numbering 
systems:
    (1) National Uniform Eartagging System. The CWD program allows the 
use of either the eight-character or nine-character format for cervids.
    (2) Animal identification number (AIN).
    (3) Premises-based number system. The premises-based number system 
combines an official premises identification number (PIN), as defined 
in this section, with a producer's livestock production numbering 
system to provide a unique identification number. The PIN and the 
production number must both appear on the official tag.
    (4) Any other numbering system approved by the Administrator for 
the identification of animals in commerce.
    Premises identification number (PIN). A nationally unique number 
assigned by a State, Tribal, and/or Federal animal health authority to 
a premises that is, in the judgment of the State, Tribal, and/or 
Federal animal health authority, a geographically distinct location 
from other premises. The premises identification number is associated 
with an address, geospatial coordinates, and/or location descriptors 
which provide a verifiably unique location. The premises identification 
number may be used in conjunction with a producer's own livestock 
production numbering system to provide a unique identification number 
for an animal. It may also be used as a component of a group/lot 
identification number. The premises identification number may consist 
of:
    (1) The State's two-letter postal abbreviation followed by the 
premises' assigned number; or
    (2) A seven-character alphanumeric code, with the right-most 
character being a check digit. The check digit number is based upon the 
ISO 7064 Mod 36/37 check digit algorithm.

[[Page 35570]]

Sec.  81.2  Identification of deer, elk, and moose in interstate 
commerce.

    Each animal required to be identified by this part must have at 
least two forms of animal identification attached to the animal. The 
means of animal identification must be approved for this use by APHIS, 
and must be an electronic implant, flank tattoo, ear tattoo, tamper-
resistant ear tag, or other device approved by APHIS. One of the animal 
identifications must be an official animal identification as defined in 
this part, with a nationally unique animal identification number that 
is linked to that animal in the CWD National Database or in an approved 
State database. The second animal identification must be unique for the 
individual animal within the herd and also must be linked to that 
animal and herd in the CWD National Database or in an approved State 
database.

(Approved by the Office of Management and Budget under control 
number 0579-0237)

Sec.  81.3  General restrictions.

    No farmed or captive deer, elk, or moose may be moved interstate 
unless it meets the requirements of this section.
    (a) Animals in the CWD Herd Certification Program. The captive 
deer, elk, or moose is:
    (1) Enrolled in the CWD Herd Certification Program and the herd has 
achieved Certified status in accordance with Sec.  55.24 of this 
chapter; and
    (2) Is accompanied by a certificate issued in accordance with Sec.  
81.4 that identifies its herd of origin and that states that the 
animal's herd has achieved Certified status and that the animal does 
not show clinical signs associated with CWD.
    (b) Animals captured for interstate movement and release. If the 
captive deer, elk, or moose was captured from a wild population for 
interstate movement and release, each animal must have two forms of 
animal identification, one of which is official animal identification, 
and the certificate issued in accordance with Sec.  81.4 that 
accompanies the animal must state that the source population has been 
documented to be low risk for CWD, based on a CWD surveillance program 
in wild cervid populations that is approved by the State Government of 
the receiving State and by APHIS.
    (c) Animals moved to slaughter. The farmed or captive deer, elk, or 
moose must be moved directly to a recognized slaughtering establishment 
for slaughter, must have two forms of animal identification, one of 
which is official animal identification, and must be accompanied by a 
certificate issued in accordance with Sec.  81.4.
    (d) Research animal movements and permits. A research animal permit 
is required for the interstate movement of cervids for research 
purposes. The permit will specify any special conditions of the 
movement determined by the Administrator to be necessary to prevent the 
dissemination of CWD. The Administrator may, at his or her discretion, 
issue the permit if he or she determines that the destination facility 
has adequate biosecurity and that the movement authorized will not 
result in the interstate dissemination of CWD.
    (1) To apply for a research animal permit, contact an APHIS 
employee or State representative and provide the following information:
    (i) The name and address of the person to whom the special permit 
is issued, the address at which the research cervids to be moved 
interstate are being held, and the name and address of the person 
receiving the cervids to be moved interstate;
    (ii) The number and type of cervids to be moved interstate;
    (iii) The reason for the interstate movement;
    (iv) Any safeguards in place to prevent transmission of CWD during 
movement or at the receiving location; and
    (v) The date on which movement will occur.
    (2) A copy of the research animal permit must accompany the cervids 
moved, and copies must be submitted so that a copy is received by the 
State animal health official and the veterinarian in charge for the 
State of destination at least 72 hours prior to the arrival of the 
cervids at the destination listed on the research animal permit.
    (e) Interstate movements approved by the Administrator. 
Notwithstanding any other provision of this part, interstate movement 
of farmed or captive deer, elk, and moose may be allowed on a case-by-
case basis when the Administrator determines that adequate survey and 
mitigation procedures are in place to prevent dissemination of CWD and 
issues a permit for the movement.


Sec.  81.4  Issuance of certificates.

    (a) Information required on certificates. A certificate must show 
any official animal identification numbers of each animal to be moved. 
A certificate must also show the number of animals covered by the 
certificate; the purpose for which the animals are to be moved; the 
points of origin and destination; the consignor; and the consignee. The 
certificate must include a statement by the issuing accredited 
veterinarian, State veterinarian, or Federal veterinarian that the 
animals were not exhibiting clinical signs associated with CWD at the 
time of examination. The certificate must also include a statement that 
the animals are from a herd that has achieved Certified status in the 
CWD Herd Certification Program, and must provide the herd's program 
status, with the following exceptions:
    (1) Certificates issued for animals captured from a wild population 
for interstate movement and release do not need to state that the 
animals are from a herd that has achieved Certified status in the CWD 
Herd Certification Program but must include the statement required in 
Sec.  81.3(b); and
    (2) Certificates issued for animals moved directly to slaughter do 
not need to state that the animals are from a herd that has achieved 
Certified status in the CWD Herd Certification Program and must state 
that an APHIS employee or State representative has been notified in 
advance of the date the animals are being moved to slaughter.
    (b) Animal identification documents attached to certificates. As an 
alternative to typing or writing individual animal identification on a 
certificate, another document may be used to provide this information, 
but only under the following conditions:
    (1) The document must be a State form or APHIS form that requires 
individual identification of animals;
    (2) A legible copy of the document must be stapled to the original 
and each copy of the certificate;
    (3) Each copy of the document must identify each animal to be moved 
with the certificate, but any information pertaining to other animals, 
and any unused space on the document for recording animal 
identification, must be crossed out in ink; and
    (4) The following information must be typed or written in ink in 
the identification column on the original and each copy of the 
certificate and must be circled or boxed, also in ink, so that no 
additional information can be added:
    (i) The name of the document; and
    (ii) Either the serial number on the document or, if the document 
is not imprinted with a serial number, both the name of the person who 
issued the document and the date the document was issued.

(Approved by the Office of Management and Budget under control 
number 0579-0237)

Sec.  81.5  Movement of deer, elk, or moose through a State to another 
State.

    Farmed or captive deer, elk, or moose may be moved through a State 
or

[[Page 35571]]

locality whose laws or regulations on the movement of those animals are 
more restrictive than this part to another State under the following 
conditions:
    (a) The farmed or captive deer, elk, or moose must be eligible to 
move interstate under Sec.  81.3.
    (b) The farmed or captive deer, elk, or moose must meet the entry 
requirements of the destination State listed on the certificate or 
permit accompanying the animal.
    (c) Except in emergencies, the farmed or captive deer, elk, or 
moose must not be unloaded until their arrival at their destination.


Sec.  81.6  Federal preemption of State and local laws and regulations 
with respect to CWD.

    State and local laws and regulations on farmed or captive deer, 
elk, or moose with respect to CWD that are more restrictive than the 
regulations in this part are not preempted by this part, except as 
described in Sec.  81.5.

    Done in Washington, DC, this May 31, 2012.
Edward Avalos,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2012-14186 Filed 6-12-12; 8:45 am]
BILLING CODE 3410-34-P