Chronic Wasting Disease Herd Certification Program and Interstate Movement of Farmed or Captive Deer, Elk, and Moose, 23887-23892 [2014-09714]
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Rules and Regulations
Federal Register
Vol. 79, No. 82
Tuesday, April 29, 2014
This section of the FEDERAL REGISTER
contains regulatory documents having general
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are keyed to and codified in the Code of
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
9 CFR Parts 55 and 81
[Docket No. 00–108–11]
RIN 0579–AB35
Chronic Wasting Disease Herd
Certification Program and Interstate
Movement of Farmed or Captive Deer,
Elk, and Moose
Animal and Plant Health
Inspection Service, USDA.
ACTION: Final rule.
AGENCY:
We are adopting as a final
rule, with two miscellaneous changes,
an interim final rule that established a
herd certification program to control
chronic wasting disease (CWD) in
farmed or captive cervids in the United
States. The interim final rule
specifically requested comment on our
policy that our CWD regulations 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
responds to comments we received on
that policy. The interim final rule was
necessary to help to control the
incidence of CWD in farmed or captive
cervid herds and prevent its spread.
DATES: Effective on April 29, 2014, we
are adopting as a final rule the interim
final rule published at 77 FR 35542–
35571 on June 13, 2012. The
amendments in this final rule are also
effective April 29, 2014.
FOR FURTHER INFORMATION CONTACT: Dr.
Patrice Klein, Senior Staff Veterinarian,
Sheep, Goat, Cervid & Equine Health
Center, Surveillance, Preparedness, and
Response Services, Veterinary Services,
APHIS, 4700 River Road Unit 43,
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SUMMARY:
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Riverdale, MD 20737–1231; (301) 851–
3435.
SUPPLEMENTARY INFORMATION:
Background
Chronic wasting disease (CWD) is a
transmissible spongiform
encephalopathy 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, whitetailed deer, black-tailed deer, sika deer,
and moose.
In the United States, as of April 2013,
CWD has been confirmed in wild deer
and elk in 18 States and in 40 farmed
elk herds, 19 farmed white-tailed deer
herds, and 1 farmed red deer herd in 13
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-
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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 have to 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,
the Animal and Plant Health Inspection
Service (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
to amend the July 2006 final rule.
Specifically, we proposed to recognize
State bans on the entry of farmed or
captive cervids for reasons unrelated to
CWD, increase to 5 the number of years
an animal must be monitored for CWD
before it may be moved interstate;
restrict the interstate movement of
cervids that originated from herds in
proximity to a CWD outbreak; change
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herd inventory procedures; prohibit the
addition of animals to CWD-positive,
-suspect, and -exposed herds; require
States to conduct wildlife surveillance
for CWD as part of their Approved State
CWD Herd Certification Programs;
provide for optional confirmatory DNA
testing of CWD-positive samples; and
make several other changes.
On June 13, 2012, we published in the
Federal Register (77 FR 35542–35571,
Docket No. 00–108–8; ‘‘the June 2012
interim final rule’’) an interim final
rule 1 that set an effective date of August
13, 2012 for the July 2006 final rule,
with amendments as discussed in the
March 2009 proposed rule and the June
2012 interim final rule itself. The
interim final rule also set a compliance
date of December 10, 2012, for the
interstate movement provisions in 9
CFR part 81, to give States and
producers time to come into compliance
with the herd certification program
requirements in 9 CFR part 55.
In the June 2012 interim final rule, we
specifically requested comments only
on our policy with respect to
preemption of State and local laws and
regulations regarding CWD. Comments
on issues other than preemption will
not be addressed in this document, as
the June 2012 interim final rule
finalized the other provisions of the
regulations. However, we are
considering comments submitted on
those other provisions for potential
future rulemaking.
Both the July 2006 final rule and the
March 2009 proposed rule indicated
that we would preempt State and local
laws and regulations that were more
restrictive than our regulations.
However, in reviewing the comments on
the March 2009 proposed rule, we
decided that it would be more
appropriate that our regulations not
preempt State and local laws and
regulations that are more stringent than
our regulations. We provided one
exception, which is that 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,
under certain conditions.
We solicited comments concerning
the preemption issue for 30 days ending
July 13, 2012. We reopened and
extended the deadline for comments
until August 13, 2012, in a document
published in the Federal Register on
July 20, 2012 (77 FR 42625, Docket No.
00–108–9). We received 199 comments
by that date. They were from interested
members of the public, producers,
1 To view the interim final rule and the comments
we received, go to https://www.regulations.gov/
#!docketDetail;D=APHIS-2006-0118.
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researchers, and representatives of State
and foreign governments. They are
discussed below by topic.
Support for Previous Preemption Policy
Some commenters stated that APHIS
regulations should preempt all State and
local regulations with respect to CWD,
thus ensuring that State and local laws
and regulations could not be more
restrictive than APHIS’ regulations.
Some of these commenters stated that
States may use this discretion to impose
stricter regulations than are justified,
meaning that owners of farmed and
captive cervids could not engage in
interstate commerce even though they
had met the requirements of the Federal
CWD program.
We decided to allow State and local
laws and regulations with respect to
CWD to be more restrictive than our
regulations for multiple reasons. One of
those reasons is that it is more difficult
to determine with certainty what
restrictions are justified for CWD than
for other diseases, given our relative
lack of knowledge about CWD.
Importantly, there is no conclusive
knowledge about how CWD may be
transmitted between wild cervid
populations and farmed and captive
cervids. Other gaps in the available
science about CWD also impair our
ability to achieve eradication of CWD,
including the lack of certainty regarding
the disease status of individual live
animals and the lack of knowledge
regarding effective cleaning and
disinfection measures for premises on
which CWD has been found. (For
example, no cleaning and disinfection
measures have been proven to
effectively address the persistence of
CWD in substrates.) This makes it more
difficult to determine what restrictions
may be justified. Recognizing this
uncertainty, we have determined that it
is appropriate to allow States to impose
more restrictive requirements with
respect to CWD, based on their
interpretation of the available evidence
and on local conditions.
One commenter stated that a purpose
of the Federal CWD rules should be to
establish national uniformity in disease
regulation. Allowing States to impose
more restrictive regulations undermines
the Federal rule and essentially negates
it. The commenter expressed particular
concern about the difficulties that will
arise regarding testing for CWD and
herd compliance for interstate
movement.
We recognize that our preemption
policy will not ensure national
uniformity in CWD regulation; indeed,
many States impose restrictions that go
beyond APHIS’ CWD regulations.
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However, the decision not to preempt
more restrictive State and local laws and
regulations was also based on the fact
that our goal for the CWD program has
changed. As discussed in the June 2012
interim final rule, the objective of our
regulations is now to control the
incidence of CWD in farmed and captive
cervids and prevent the interstate
spread of the disease, 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 the lack of
knowledge about the disease discussed
earlier. However, States may decide that
a higher level of protection is
appropriate in their State, and 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.
It is important to keep in mind, both
with respect to the comments discussed
above and those discussed later in this
document, that the CWD program was
only established in the June 2012
interim final rule, although the effort to
establish the program goes back further.
Changing conditions, new knowledge
about CWD, or our experience
administering the program could all
lead APHIS to determine that a change
in our preemption policy is necessary.
We will continue to consider this issue
as we implement the CWD program.
Opposition to Allowing Farmed or
Captive Cervids To Move Through
States and Localities With More
Restrictive Laws or Regulations
As noted earlier, we made an
exception to our policy of allowing State
and local laws and regulations to be
more restrictive than APHIS’ regulations
to provide conditions for the interstate
movement of farmed or captive cervids
through a State or locality. These
conditions preempt State and local laws
and regulations that would otherwise
apply to such movement through a State
or locality. The conditions for such
movement are:
• The farmed or captive deer, elk, or
moose must be eligible to move
interstate under § 81.3. This section
requires animals that move interstate to
be from herds that are Certified as low
risk for CWD, 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.
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• 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.
Some commenters stated that States
should have the authority to further
regulate or ban the transit of farmed or
captive cervids through a State en route
to another State.
Three commenters stated that
movement of farmed or captive cervids
through a State introduces risk and
would potentially affect State efforts to
exclude or eradicate CWD. One stated
that State and local authorities know the
risks and resources within their
jurisdictions and are more suited to
protect their resources beyond the
protection afforded by a national
program if required. Another stated that
it is the prerogative of each State to
determine the level of risk it is willing
to accept with respect to CWD. One
commenter stated that the interim rule
stated that interstate movement is a low
risk with limited exceptions, and asked
what the exceptions are.
While there may be some risk
associated with the movement of farmed
or captive cervids through a State en
route to another State, the available
evidence indicates that the risk is low
in all circumstances. As discussed in
the June 2012 interim final rule, the
available science suggests that CWD is
not highly infectious. In addition, the
regulations in § 81.3 limit the interstate
movement of farmed or captive cervids
to animals from herds that have
achieved Certified status as being lowrisk for CWD, with certain exceptions
for specific movements as noted earlier.
As discussed in the June 2012 interim
final rule, 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.
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80502). Captive cervids that needed to
be offloaded for such purposes would
not be easy to confine and to reload onto
a conveyance. Several commenters on
the interim final rule agreed that
circuitous routing around States that
ban or restrict movement raises both
economic and animal welfare concerns.
Given the low risk associated with
this type of movement, and the concerns
that not allowing such movement raises,
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.
One commenter stated that the
preemption policy does not take into
account States’ legitimate concerns for
captive cervid escapes through
emergency unloading and accidents.
As noted earlier, the regulations
require farmed or captive cervids moved
through a State to be eligible for
interstate movement under part 81, and
thus to be low risk for CWD. We do not
believe the risk of allowing movement
through a State outweighs the economic
and animal welfare benefits described
earlier.
Two commenters stated that
preempting State and local laws and
regulations regarding the movement of
farmed or captive cervids through a
State or locality en route to another
State was not within APHIS’ authority
under the Animal Health Protection Act
(AHPA, 7 U.S.C. 8301 et seq). One
commenter elaborated that the AHPA
gives the Secretary of Agriculture the
authority to prohibit or restrict the
movement in interstate commerce of
any animal, if the Secretary determines
that the prohibition or restriction is
necessary to prevent the introduction or
dissemination of any pest or disease of
livestock. The commenter stated that the
June 2012 interim final rule does not
prohibit or restrict movement in
interstate commerce as authorized by
the AHPA.
Prior to August 13, 2012, when the
June 2012 interim final rule became
effective, there had been no Federal
regulation of the interstate movement of
farmed or captive cervids. The
regulations in part 81, which the interim
final rule added to 9 CFR chapter I,
restrict the movement in interstate
commerce of farmed or captive cervids,
including the interstate movement of
farmed or captive cervids through a
State. As noted earlier, such movement
may only occur in accordance with
certain requirements.
The provisions allowing for interstate
movement through a State were
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promulgated with the AHPA in mind. In
7 U.S.C. 8301, Congress found that the
prevention, detection, control, and
eradication of diseases and pests of
animals are essential to protect animal
health, and that regulation is also
necessary to prevent and eliminate
burdens on interstate commerce, among
other things. Given the low risk
associated with the movement through
a State of farmed or captive cervids that
meet the other requirements in 9 CFR
part 81, we believe we have
appropriately balanced our duties under
the AHPA to prevent and control CWD
and to prevent and eliminate burdens
on interstate commerce.
Additional Restrictions on Movement
Through a State or Locality
Some commenters asked whether
States and localities could impose
additional restrictions on the interstate
movement of farmed or captive cervids
through a State or locality, beyond those
listed in § 81.5.
Two commenters, both State fish and
wildlife agencies, requested that we
amend § 81.5 to allow for State approval
of transport of cervids through a State.
One of these commenters stated that the
commenter’s State bans all
transportation of cervids through the
State except under a permit issued by
that agency. The commenter stated that
the intent of the permit was not to
impede transit of cervids but to ensure
that animals are properly secured
during transport, all documentation is
valid, and that the route taken through
the State is as efficient and expeditious
as possible. A third commenter asked
whether a State could require a permit
or an inspection of cervids moving
through a State, or a fee for movement
of farmed or captive cervids through a
State.
A State could use any kind of permit
or inspection requirement as a de facto
ban on the interstate movement of
farmed or captive cervids through the
State. For this reason, adding such a
provision to § 81.5 could be
counterproductive to the goal of
facilitating interstate movement that
poses a low risk. However, we
encourage persons moving farmed or
captive cervids through a State to notify
the States through which the movement
will occur.
Since a State cannot require permits
or inspections for cervids moved
through their State en route to another
State, as this would obstruct transiting
that State, we assume that fees specific
to the interstate movement of farmed or
captive cervids through a State would
not be necessary, as they are not for
other livestock.
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Two commenters recommended that
we add requirements to address the
potential escape of urine and feces from
conveyances being used to move farmed
or captive cervids interstate. One
commenter stated that research has
demonstrated that CWD can be
transmitted by environmental
transmission, and prions are excreted in
the urine and feces of infected animals.
The other commenter recommended
that we also require decontamination for
all transport vehicles and equipment
that cross state lines and transporter
recordkeeping to allow traceback of all
live animals.
We do not consider these
requirements to be necessary to mitigate
the low risk associated with the
movement through a State of farmed or
captive cervids that are eligible for
interstate movement under 9 CFR part
81. Such farmed or captive cervids are
already at low risk for CWD. Wild
cervids are unlikely to receive sustained
exposure from urine or feces that
inadvertently escapes a cervid transport
vehicle moving on an interstate
highway, for example. Decontamination
of transport vehicles and equipment
could be required by the receiving State
after the animals have been offloaded at
their destination. If the commenter is
referring to decontamination during
transport of a vehicle loaded with
animals before the vehicle enters a State
en route to its final destination, that
would require unloading the cervids,
which would potentially pose a greater
risk of escape and may affect the welfare
of the animals. Finally, all farmed or
captive cervids moved interstate are
required to be identified in accordance
with § 81.2, which requires two forms of
animal identification, one of which is
official. Under § 81.4, the animal
identification must be included on the
certificate that accompanies the farmed
or captive cervids moved interstate.
These requirements allow for any
traceback that should be necessary.
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Federal CWD Herd Certification
Program
In the first sentence of paragraph (b)
of § 55.22, the July 2006 final rule
provided for direct enrollment in the
Federal CWD Herd Certification
Program by owners as follows:
Any owner of a farmed or captive deer, elk,
or moose herd may apply to enroll in the
CWD Herd Certification Program by sending
a written request to the appropriate State
agency, or to the veterinarian in charge if no
Approved State CWD Herd Certification
Program exists in the herd’s State.
The June 2012 interim final rule
amended this sentence to indicate that
direct enrollment by herd owners in the
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Federal CWD Herd Certification
Program would be subject to the
availability of Federal funds. Such
appropriated funding is not currently
available.
Three commenters expressed concern
about what they perceived to be the
preemptive effects of this provision.
They stated that it conflicted with the
overall policy of allowing States and
localities to establish more restrictive
regulations for CWD. Two of the
commenters also stated that the decision
to implement a herd certification
program should be at the State’s
discretion and no private individual
should be granted the flexibility to
circumvent State authority. One stated
that it is unlikely that appropriated
funds will be available. One of these
commenters, however, stated that if the
provision serves to qualify a cervid
owner to export deer to another State
that permits it, the commenter’s State
fish and wildlife agency could assist the
cervid owner to meet requirements
necessary to enroll individually into the
herd certification program.
The last of the comments is closest to
the intent of the provision. If a State
prohibits cervid farming, our regulations
will not preempt that law. Rather, this
provision addresses the specific
situation of a State that allows cervids
to be farmed but does not provide a
State CWD Herd Certification Program
in which herd owners can participate.
In such a case, a herd owner could
apply to the Federal CWD Herd
Certification Program, subject to the
availability of Federal funding. We do
not believe that the provision is
ambiguous, as a person could not own
a herd of cervids in a State where
farming cervids was prohibited; the
provision could only apply if a herd
owner, operating legally in a State, had
no State CWD Herd Certification
Program to which he or she could apply.
It is important to provide this option
because only farmed or captive cervid
herds that have reached Certified status
under an approved herd certification
program are eligible for interstate
movement under 9 CFR part 81; if no
herd certification program is available
in a State, no farmed cervids can be
moved interstate from that State.
Wild Cervids
Both the July 2006 final rule and the
June 2012 interim final rule included
requirements for the interstate
movement of wild cervids. Specifically,
paragraph (b) of § 81.3 requires captive
cervids captured from a wild population
for interstate movement and release to
be accompanied by a certificate stating
that the source population has been
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determined 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.
One commenter stated that this
provision preempts the authority of
States to control the movement of wild
cervids.
As noted in the Background section of
the June 2012 interim final rule, the
Federal CWD regulations indeed set
minimum standards for CWD control.
We believe that these are the minimum
standards necessary to have an effective
CWD control program. The movement of
wild cervids captured for interstate
movement and release could easily
spread CWD. As a result, we have
determined that it is necessary to
impose minimum restrictions on this
movement.
Miscellaneous Changes
In the June 2012 interim final rule, we
described how the goal of the CWD
program had shifted from the
elimination of CWD from farmed and
captive cervids in the United States to
controlling the incidence of CWD in
farmed and captive cervids and
preventing the interstate spread of CWD.
In § 55.1, the definition of herd plan,
established in a previous action,
indicates that a herd plan sets out the
steps to be taken to eradicate CWD from
a CWD-positive herd, among other
things. Completion of a herd plan is
required to allow a herd enrolled in the
Federal CWD herd certification program
to reenroll in the program after it has
been determined to be positive for or
exposed to CWD. However, as the goal
of the CWD program is no longer to
eliminate CWD from farmed and captive
cervids, the term ‘‘eradicate’’ may not be
appropriate; in some cases, a herd plan
may seek to control CWD within the
herd, without necessarily depopulating
the whole herd. For this reason, we are
amending the definition of herd plan to
indicate that such a plan will set out the
steps to be taken to control the spread
of CWD from a CWD-positive herd.
Under § 81.3, cervids moved directly
to slaughter must, among other things,
be moved to a recognized slaughtering
establishment. We did not include in
the June 2012 interim final rule a
definition of the term ‘‘recognized
slaughtering establishment.’’ This
omission could cause confusion.
Accordingly, we are adding a definition
of recognized slaughtering
establishment to § 81.1, which reads
‘‘An establishment where slaughtering
operations are regularly carried out
under Federal or State inspection and
which has been approved by the Animal
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and Plant Health Inspection Service to
receive animals for slaughter.’’ This
definition is taken from the regulations
governing the importation of ruminants
in § 93.400 and is consistent with the
intended meaning of the term in § 81.3.
Therefore, for the reasons given in the
interim rule and in this document, we
are adopting the interim final rule as a
final rule, with the changes discussed in
this document.
This action also affirms the
information contained in the interim
rule concerning Executive Orders
12866, 13563, 12372, and 12988 and the
Paperwork Reduction Act.
Further, this action has been
determined to be not significant for the
purposes of Executive Order 12866 and,
therefore, has not been reviewed by the
Office of Management and Budget.
Regulatory Flexibility Act
This final rule follows an interim final
rule that established a Federal herd
certification program for CWD and put
in place interstate movement
restrictions to prevent CWD from
spreading interstate. The interim final
rule specifically requested comments
only on the issue of our new preemption
policy.
In accordance with 5 U.S.C. 604, we
have performed a final regulatory
flexibility analysis, which is
summarized below, regarding the
economic effects of this rule on small
entities. 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 affirms prior regulatory
actions that established a voluntary herd
certification program for the control of
CWD in farmed or captive cervids (deer,
elk, and moose) in the United States.
The program regulations include CWD
monitoring and testing requirements,
and set minimal requirements for
interstate movement that will not
preempt more restrictive State or local
laws or regulations. At present, herd
owners’ interstate marketing decisions
may need to account for dissimilar State
CWD certification regulations.
Herd owners who choose to
participate in the herd certification
program will have to meet program
requirements for animal identification,
testing, and herd management. Other
than for cervids moving to slaughter or
for research, those that move interstate
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
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from a wild cervid population that has
been documented to be low risk for
CWD based on a surveillance program.
Some herd owners 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
herd certification programs 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 Herd Certification
Program in the national CWD herd
certification 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. 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. An annual herd
inventory—including a review of owner
records and an observation of the herd’s
unrestrained animals in a viewable,
enclosed area—will continue to be
required, but the animals will not
necessarily need to be physically
assembled and restrained.
The inventory cost is estimated to
average about $25 to $30 per deer or elk,
including the animals’ physical
inventory once every 3 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 less than 2 percent of the value
of farmed or captive deer and elk.
All on-farm cervid mortalities and any
cervids on herd inventories sent to
slaughter and hunt facilities must be
tested to achieve certified status.
Thereafter, all on-farm mortalities of
Certified cervids will be required to be
tested for CWD to maintain Certified
status. There also will be optional
confirmatory DNA test provisions for
animals that test CWD-positive. CWD
testing will entail submission of the
carcass or whole head for tissue
sampling and testing, or collection of
the tissue samples by State officials,
APHIS employees, accredited
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Sfmt 4700
23891
veterinarians, or State-certified or
-designated CWD sample collectors. 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. Owners who choose
confirmatory DNA testing will consider
it a benefit, as evidenced by their
payment for this voluntary, optional
test.
Most cervid operations are small
entities. The rule will have a positive
overall economic impact on affected
entities large and small, and for the U.S.
cervid industries generally, in
controlling the spread of CWD and
facilitating interstate and international
trade in cervids and cervid products.
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, the interim final rule
amending 9 CFR parts 55 and 81 that
was published at 77 FR 35542–35571 on
June 13, 2012, is adopted as a final rule
with the following changes:
PART 55—CONTROL OF CHRONIC
WASTING DISEASE
1. The authority citation for part 55
continues to read as follows:
■
Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22,
2.80, and 371.4.
§ 55.1
[Amended]
2. In § 55.1, the definition of herd plan
is amended by removing the word
‘‘eradicate’’ and adding the words
‘‘control the spread of’’ in its place.
■
PART 81—CHRONIC WASTING
DISEASE IN DEER, ELK, AND MOOSE
3. The authority citation for part 81
continues to read as follows:
■
Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22,
2.80, and 371.4.
4. In § 81.1, a new definition of
recognized slaughtering establishment is
added in alphabetical order to read as
follows:
■
§ 81.1
*
E:\FR\FM\29APR1.SGM
Definitions.
*
*
29APR1
*
*
23892
Federal Register / Vol. 79, No. 82 / Tuesday, April 29, 2014 / Rules and Regulations
Recognized slaughtering
establishment. An establishment where
slaughtering operations are regularly
carried out under Federal or State
inspection and which has been
approved by the Animal and Plant
Health Inspection Service to receive
animals for slaughter.
Done in Washington, DC, this 24th day of
April 2014.
Kevin Shea,
Administrator, Animal and Plant Health
Inspection Service.
[FR Doc. 2014–09714 Filed 4–28–14; 8:45 am]
BILLING CODE 3410–34–P
DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and
Stockyards Administration
S.
Brett Offutt, Director, Policy and
Litigation Division by Email at
s.brett.offutt@usda.gov, or by telephone
at (202) 720–7363.
FOR FURTHER INFORMATION CONTACT:
9 CFR Part 201
Scales; Accurate Weights, Repairs,
Adjustments or Replacements After
Inspection
SUPPLEMENTARY INFORMATION:
Background
Grain Inspection, Packers and
Stockyards Administration, USDA.
ACTION: Direct final rule.
AGENCY:
The Grain Inspection, Packers
and Stockyards Administration (GIPSA)
Packers and Stockyards Program (PSP)
is incorporating by reference ‘‘2013
edition of the NIST Handbook 44’’ and
to require that the scales used by
stockyard owner, market agencies,
dealers, packers, and live poultry
dealers to weigh livestock, livestock
carcasses, live poultry, or feed for the
purpose of purchase, sales acquisitions,
payment, or settlement meet applicable
requirements of the 2013 edition of the
NIST Handbook 44.
DATES: This rule is effective June 30,
2014. The incorporation by reference of
certain publications in this rule is
approved by the Director of the Federal
Register as of June 30, 2014. Comments
are due May 29, 2014. If adverse
comments are received, GIPSA will
publish a timely withdrawal of the rule
in the Federal Register.
ADDRESSES: We invite you to submit
comments on this direct final rule by
any of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Mail: Send hardcopy written
comments to Irene Omade, GIPSA,
USDA, 1400 Independence Avenue
SW., Room 2530–S, Washington, DC
20250.
• Hand Delivery or Courier: Deliver
comments to Irene Omade, GIPSA,
sroberts on DSK5SPTVN1PROD with RULES
SUMMARY:
VerDate Mar<15>2010
15:55 Apr 28, 2014
Jkt 232001
USDA, 1400 Independence Avenue
SW., Room 2530–S, Washington, DC
20250.
• Fax: Send comments by facsimile
transmission to: (202) 690–2173.
Instructions: All comments will
become a matter of public record and
should be identified as ‘‘NIST
Handbook 44 IBF Comments,’’ making
reference to the date and page number
of this issue of the Federal Register.
Comments will be available for public
inspection at https://
www.regulations.gov and in the above
office during regular business hours (7
CFR 1.27(b)). Please contact the GIPSA
Management and Budget Services at
(202) 720–8479 to make an appointment
to read the comments received.
The Grain Inspection, Packers and
Stockyards Administration (GIPSA)
enforces the Packers and Stockyards Act
(P&S Act) and those regulations
necessary to carry out provisions of the
P&S Act. The regulated entities are
stockyard owners, swine contractors,
market agencies, dealers, packers, and
live poultry dealers. GIPSA issued
regulations covering devices that
regulated entities use for weighing and
grading livestock and poultry. The
purpose for these regulations is to
ensure fairness and accuracy in the
determination of prices the regulated
entities pay for livestock and poultry.
Title 9, CFR 201.71(a) incorporates by
reference the National Institute of
Standards and Technology (NIST)
Handbook 44 to regulate devices used
by regulated entities to weigh or grade
livestock or poultry. Currently, 9 CFR
201.71(a) incorporates by reference the
2009 edition of NIST Handbook 44,
‘‘Specifications, Tolerances, and Other
Technical Requirements for Weighing
and Measuring Devices.’’ The 2009
edition included the ‘‘tentative’’ status
of code to regulate the weighing and
measuring devices used by regulated
entities. In July 2012, the National
Conference on Weights and Measures
took action to change the ‘‘tentative’’
code to ‘‘permanent’’. Since the
‘‘tentative’’ code has become
‘‘permanent’’ in the 2013 edition of
Handbook 44, effective January 1, 2013,
GIPSA is amending 9 CFR 201.71(a) to
incorporate by reference the 2013
edition of Handbook 44.
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Direct Final Action
Pursuant to 5 U.S.C 553, it is found
and determined upon good cause that it
is impracticable, unnecessary, and
contrary to public interest to give
preliminary notice prior to putting this
direct final rule in effect because GIPSA
regularly updates this section of the P&S
Act regulations to incorporate by
reference NIST Handbook 44. Further,
GIPSA views this action as
noncontroversial and anticipates no
adverse public comment. This rule will
be effective, as published in this
document, 30 days after the date of
publication in the Federal Register,
unless GIPSA receives written adverse
comments or written notice of intent to
submit adverse comments within 30
days of the date of publication of this
rule in the Federal Register. Adverse
comments are considered to be those
comments that suggest the rule should
not be adopted or suggest the rule
should be changed.
If GIPSA receives written adverse
comments or written notice of intent to
submit adverse comments, we will
publish a notice in the Federal Register
withdrawing this rule before the
effective date. GIPSA will then publish
a proposed rule for public comment.
Following the close of that comment
period, the comments will be
considered thoughtfully, and a final rule
addressing the comments will be
published.
Executive Order 12866 and Regulatory
Flexibility Act
This rule has been determined to be
not significant for the purposes of
Executive Order 12866 and, therefore,
has not been reviewed by the Office of
Management and Budget.
Pursuant to the requirements set forth
in the Regulatory Flexibility Act (5
U.S.C. 601–612), GIPSA has determined
that this rule will not have a significant
economic impact on a substantial
number of small entities. GIPSA has
determined that most regulated entities
are complying with the current 2013
edition of Handbook 44 since State
weights and measures departments
already impose the standards. Since
regulated entities are required under
States law to comply with NIST
Handbook 44, there are no new costs or
burden to comply with those standards.
Executive Order 12988
This direct final rule has been
reviewed under Executive Order 12988,
Civil Justice Reform. These actions are
not intended to have retroactive effect.
This direct final rule would not preempt
any State or local laws, or regulations,
E:\FR\FM\29APR1.SGM
29APR1
Agencies
[Federal Register Volume 79, Number 82 (Tuesday, April 29, 2014)]
[Rules and Regulations]
[Pages 23887-23892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-09714]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 79, No. 82 / Tuesday, April 29, 2014 / Rules
and Regulations
[[Page 23887]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 55 and 81
[Docket No. 00-108-11]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are adopting as a final rule, with two miscellaneous
changes, an interim final rule that established a herd certification
program to control chronic wasting disease (CWD) in farmed or captive
cervids in the United States. The interim final rule specifically
requested comment on our policy that our CWD regulations 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 responds
to comments we received on that policy. The interim final rule was
necessary to help to control the incidence of CWD in farmed or captive
cervid herds and prevent its spread.
DATES: Effective on April 29, 2014, we are adopting as a final rule the
interim final rule published at 77 FR 35542-35571 on June 13, 2012. The
amendments in this final rule are also effective April 29, 2014.
FOR FURTHER INFORMATION CONTACT: Dr. Patrice Klein, Senior Staff
Veterinarian, Sheep, Goat, Cervid & Equine Health Center, Surveillance,
Preparedness, and Response Services, Veterinary Services, APHIS, 4700
River Road Unit 43, Riverdale, MD 20737-1231; (301) 851-3435.
SUPPLEMENTARY INFORMATION:
Background
Chronic wasting disease (CWD) is a transmissible spongiform
encephalopathy 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 April 2013, CWD has been confirmed in
wild deer and elk in 18 States and in 40 farmed elk herds, 19 farmed
white-tailed deer herds, and 1 farmed red deer herd in 13 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 have to 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, the Animal and Plant Health Inspection Service (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 to amend the July 2006 final rule. Specifically, we proposed
to recognize State bans on the entry of farmed or captive cervids for
reasons unrelated to CWD, increase to 5 the number of years an animal
must be monitored for CWD before it may be moved interstate; restrict
the interstate movement of cervids that originated from herds in
proximity to a CWD outbreak; change
[[Page 23888]]
herd inventory procedures; prohibit the addition of animals to CWD-
positive, -suspect, and -exposed herds; require States to conduct
wildlife surveillance for CWD as part of their Approved State CWD Herd
Certification Programs; provide for optional confirmatory DNA testing
of CWD-positive samples; and make several other changes.
On June 13, 2012, we published in the Federal Register (77 FR
35542-35571, Docket No. 00-108-8; ``the June 2012 interim final rule'')
an interim final rule \1\ that set an effective date of August 13, 2012
for the July 2006 final rule, with amendments as discussed in the March
2009 proposed rule and the June 2012 interim final rule itself. The
interim final rule also set a compliance date of December 10, 2012, for
the interstate movement provisions in 9 CFR part 81, to give States and
producers time to come into compliance with the herd certification
program requirements in 9 CFR part 55.
---------------------------------------------------------------------------
\1\ To view the interim final rule and the comments we received,
go to https://www.regulations.gov/#!docketDetail;D=APHIS-2006-0118.
---------------------------------------------------------------------------
In the June 2012 interim final rule, we specifically requested
comments only on our policy with respect to preemption of State and
local laws and regulations regarding CWD. Comments on issues other than
preemption will not be addressed in this document, as the June 2012
interim final rule finalized the other provisions of the regulations.
However, we are considering comments submitted on those other
provisions for potential future rulemaking.
Both the July 2006 final rule and the March 2009 proposed rule
indicated that we would preempt State and local laws and regulations
that were more restrictive than our regulations. However, in reviewing
the comments on the March 2009 proposed rule, we decided that it would
be more appropriate that our regulations not preempt State and local
laws and regulations that are more stringent than our regulations. We
provided one exception, which is that 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, under certain conditions.
We solicited comments concerning the preemption issue for 30 days
ending July 13, 2012. We reopened and extended the deadline for
comments until August 13, 2012, in a document published in the Federal
Register on July 20, 2012 (77 FR 42625, Docket No. 00-108-9). We
received 199 comments by that date. They were from interested members
of the public, producers, researchers, and representatives of State and
foreign governments. They are discussed below by topic.
Support for Previous Preemption Policy
Some commenters stated that APHIS regulations should preempt all
State and local regulations with respect to CWD, thus ensuring that
State and local laws and regulations could not be more restrictive than
APHIS' regulations. Some of these commenters stated that States may use
this discretion to impose stricter regulations than are justified,
meaning that owners of farmed and captive cervids could not engage in
interstate commerce even though they had met the requirements of the
Federal CWD program.
We decided to allow State and local laws and regulations with
respect to CWD to be more restrictive than our regulations for multiple
reasons. One of those reasons is that it is more difficult to determine
with certainty what restrictions are justified for CWD than for other
diseases, given our relative lack of knowledge about CWD. Importantly,
there is no conclusive knowledge about how CWD may be transmitted
between wild cervid populations and farmed and captive cervids. Other
gaps in the available science about CWD also impair our ability to
achieve eradication of CWD, including the lack of certainty regarding
the disease status of individual live animals and the lack of knowledge
regarding effective cleaning and disinfection measures for premises on
which CWD has been found. (For example, no cleaning and disinfection
measures have been proven to effectively address the persistence of CWD
in substrates.) This makes it more difficult to determine what
restrictions may be justified. Recognizing this uncertainty, we have
determined that it is appropriate to allow States to impose more
restrictive requirements with respect to CWD, based on their
interpretation of the available evidence and on local conditions.
One commenter stated that a purpose of the Federal CWD rules should
be to establish national uniformity in disease regulation. Allowing
States to impose more restrictive regulations undermines the Federal
rule and essentially negates it. The commenter expressed particular
concern about the difficulties that will arise regarding testing for
CWD and herd compliance for interstate movement.
We recognize that our preemption policy will not ensure national
uniformity in CWD regulation; indeed, many States impose restrictions
that go beyond APHIS' CWD regulations. However, the decision not to
preempt more restrictive State and local laws and regulations was also
based on the fact that our goal for the CWD program has changed. As
discussed in the June 2012 interim final rule, the objective of our
regulations is now to control the incidence of CWD in farmed and
captive cervids and prevent the interstate spread of the disease,
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 the lack of knowledge
about the disease discussed earlier. However, States may decide that a
higher level of protection is appropriate in their State, and 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.
It is important to keep in mind, both with respect to the comments
discussed above and those discussed later in this document, that the
CWD program was only established in the June 2012 interim final rule,
although the effort to establish the program goes back further.
Changing conditions, new knowledge about CWD, or our experience
administering the program could all lead APHIS to determine that a
change in our preemption policy is necessary. We will continue to
consider this issue as we implement the CWD program.
Opposition to Allowing Farmed or Captive Cervids To Move Through States
and Localities With More Restrictive Laws or Regulations
As noted earlier, we made an exception to our policy of allowing
State and local laws and regulations to be more restrictive than APHIS'
regulations to provide conditions for the interstate movement of farmed
or captive cervids through a State or locality. These conditions
preempt State and local laws and regulations that would otherwise apply
to such movement through a State or locality. The conditions for such
movement are:
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 herds that are Certified as low risk for
CWD, 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.
[[Page 23889]]
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.
Some commenters stated that States should have the authority to
further regulate or ban the transit of farmed or captive cervids
through a State en route to another State.
Three commenters stated that movement of farmed or captive cervids
through a State introduces risk and would potentially affect State
efforts to exclude or eradicate CWD. One stated that State and local
authorities know the risks and resources within their jurisdictions and
are more suited to protect their resources beyond the protection
afforded by a national program if required. Another stated that it is
the prerogative of each State to determine the level of risk it is
willing to accept with respect to CWD. One commenter stated that the
interim rule stated that interstate movement is a low risk with limited
exceptions, and asked what the exceptions are.
While there may be some risk associated with the movement of farmed
or captive cervids through a State en route to another State, the
available evidence indicates that the risk is low in all circumstances.
As discussed in the June 2012 interim final rule, the available science
suggests that CWD is not highly infectious. In addition, the
regulations in Sec. 81.3 limit the interstate movement of farmed or
captive cervids to animals from herds that have achieved Certified
status as being low-risk for CWD, with certain exceptions for specific
movements as noted earlier.
As discussed in the June 2012 interim final rule, 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. Several commenters on the interim final rule agreed
that circuitous routing around States that ban or restrict movement
raises both economic and animal welfare concerns.
Given the low risk associated with this type of movement, and the
concerns that not allowing such movement raises, 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.
One commenter stated that the preemption policy does not take into
account States' legitimate concerns for captive cervid escapes through
emergency unloading and accidents.
As noted earlier, the regulations require farmed or captive cervids
moved through a State to be eligible for interstate movement under part
81, and thus to be low risk for CWD. We do not believe the risk of
allowing movement through a State outweighs the economic and animal
welfare benefits described earlier.
Two commenters stated that preempting State and local laws and
regulations regarding the movement of farmed or captive cervids through
a State or locality en route to another State was not within APHIS'
authority under the Animal Health Protection Act (AHPA, 7 U.S.C. 8301
et seq). One commenter elaborated that the AHPA gives the Secretary of
Agriculture the authority to prohibit or restrict the movement in
interstate commerce of any animal, if the Secretary determines that the
prohibition or restriction is necessary to prevent the introduction or
dissemination of any pest or disease of livestock. The commenter stated
that the June 2012 interim final rule does not prohibit or restrict
movement in interstate commerce as authorized by the AHPA.
Prior to August 13, 2012, when the June 2012 interim final rule
became effective, there had been no Federal regulation of the
interstate movement of farmed or captive cervids. The regulations in
part 81, which the interim final rule added to 9 CFR chapter I,
restrict the movement in interstate commerce of farmed or captive
cervids, including the interstate movement of farmed or captive cervids
through a State. As noted earlier, such movement may only occur in
accordance with certain requirements.
The provisions allowing for interstate movement through a State
were promulgated with the AHPA in mind. In 7 U.S.C. 8301, Congress
found that the prevention, detection, control, and eradication of
diseases and pests of animals are essential to protect animal health,
and that regulation is also necessary to prevent and eliminate burdens
on interstate commerce, among other things. Given the low risk
associated with the movement through a State of farmed or captive
cervids that meet the other requirements in 9 CFR part 81, we believe
we have appropriately balanced our duties under the AHPA to prevent and
control CWD and to prevent and eliminate burdens on interstate
commerce.
Additional Restrictions on Movement Through a State or Locality
Some commenters asked whether States and localities could impose
additional restrictions on the interstate movement of farmed or captive
cervids through a State or locality, beyond those listed in Sec. 81.5.
Two commenters, both State fish and wildlife agencies, requested
that we amend Sec. 81.5 to allow for State approval of transport of
cervids through a State. One of these commenters stated that the
commenter's State bans all transportation of cervids through the State
except under a permit issued by that agency. The commenter stated that
the intent of the permit was not to impede transit of cervids but to
ensure that animals are properly secured during transport, all
documentation is valid, and that the route taken through the State is
as efficient and expeditious as possible. A third commenter asked
whether a State could require a permit or an inspection of cervids
moving through a State, or a fee for movement of farmed or captive
cervids through a State.
A State could use any kind of permit or inspection requirement as a
de facto ban on the interstate movement of farmed or captive cervids
through the State. For this reason, adding such a provision to Sec.
81.5 could be counterproductive to the goal of facilitating interstate
movement that poses a low risk. However, we encourage persons moving
farmed or captive cervids through a State to notify the States through
which the movement will occur.
Since a State cannot require permits or inspections for cervids
moved through their State en route to another State, as this would
obstruct transiting that State, we assume that fees specific to the
interstate movement of farmed or captive cervids through a State would
not be necessary, as they are not for other livestock.
[[Page 23890]]
Two commenters recommended that we add requirements to address the
potential escape of urine and feces from conveyances being used to move
farmed or captive cervids interstate. One commenter stated that
research has demonstrated that CWD can be transmitted by environmental
transmission, and prions are excreted in the urine and feces of
infected animals. The other commenter recommended that we also require
decontamination for all transport vehicles and equipment that cross
state lines and transporter recordkeeping to allow traceback of all
live animals.
We do not consider these requirements to be necessary to mitigate
the low risk associated with the movement through a State of farmed or
captive cervids that are eligible for interstate movement under 9 CFR
part 81. Such farmed or captive cervids are already at low risk for
CWD. Wild cervids are unlikely to receive sustained exposure from urine
or feces that inadvertently escapes a cervid transport vehicle moving
on an interstate highway, for example. Decontamination of transport
vehicles and equipment could be required by the receiving State after
the animals have been offloaded at their destination. If the commenter
is referring to decontamination during transport of a vehicle loaded
with animals before the vehicle enters a State en route to its final
destination, that would require unloading the cervids, which would
potentially pose a greater risk of escape and may affect the welfare of
the animals. Finally, all farmed or captive cervids moved interstate
are required to be identified in accordance with Sec. 81.2, which
requires two forms of animal identification, one of which is official.
Under Sec. 81.4, the animal identification must be included on the
certificate that accompanies the farmed or captive cervids moved
interstate. These requirements allow for any traceback that should be
necessary.
Federal CWD Herd Certification Program
In the first sentence of paragraph (b) of Sec. 55.22, the July
2006 final rule provided for direct enrollment in the Federal CWD Herd
Certification Program by owners as follows:
Any owner of a farmed or captive deer, elk, or moose herd may
apply to enroll in the CWD Herd Certification Program by sending a
written request to the appropriate State agency, or to the
veterinarian in charge if no Approved State CWD Herd Certification
Program exists in the herd's State.
The June 2012 interim final rule amended this sentence to indicate
that direct enrollment by herd owners in the Federal CWD Herd
Certification Program would be subject to the availability of Federal
funds. Such appropriated funding is not currently available.
Three commenters expressed concern about what they perceived to be
the preemptive effects of this provision. They stated that it
conflicted with the overall policy of allowing States and localities to
establish more restrictive regulations for CWD. Two of the commenters
also stated that the decision to implement a herd certification program
should be at the State's discretion and no private individual should be
granted the flexibility to circumvent State authority. One stated that
it is unlikely that appropriated funds will be available. One of these
commenters, however, stated that if the provision serves to qualify a
cervid owner to export deer to another State that permits it, the
commenter's State fish and wildlife agency could assist the cervid
owner to meet requirements necessary to enroll individually into the
herd certification program.
The last of the comments is closest to the intent of the provision.
If a State prohibits cervid farming, our regulations will not preempt
that law. Rather, this provision addresses the specific situation of a
State that allows cervids to be farmed but does not provide a State CWD
Herd Certification Program in which herd owners can participate. In
such a case, a herd owner could apply to the Federal CWD Herd
Certification Program, subject to the availability of Federal funding.
We do not believe that the provision is ambiguous, as a person could
not own a herd of cervids in a State where farming cervids was
prohibited; the provision could only apply if a herd owner, operating
legally in a State, had no State CWD Herd Certification Program to
which he or she could apply.
It is important to provide this option because only farmed or
captive cervid herds that have reached Certified status under an
approved herd certification program are eligible for interstate
movement under 9 CFR part 81; if no herd certification program is
available in a State, no farmed cervids can be moved interstate from
that State.
Wild Cervids
Both the July 2006 final rule and the June 2012 interim final rule
included requirements for the interstate movement of wild cervids.
Specifically, paragraph (b) of Sec. 81.3 requires captive cervids
captured from a wild population for interstate movement and release to
be accompanied by a certificate stating that the source population has
been determined 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.
One commenter stated that this provision preempts the authority of
States to control the movement of wild cervids.
As noted in the Background section of the June 2012 interim final
rule, the Federal CWD regulations indeed set minimum standards for CWD
control. We believe that these are the minimum standards necessary to
have an effective CWD control program. The movement of wild cervids
captured for interstate movement and release could easily spread CWD.
As a result, we have determined that it is necessary to impose minimum
restrictions on this movement.
Miscellaneous Changes
In the June 2012 interim final rule, we described how the goal of
the CWD program had shifted from the elimination of CWD from farmed and
captive cervids in the United States to controlling the incidence of
CWD in farmed and captive cervids and preventing the interstate spread
of CWD. In Sec. 55.1, the definition of herd plan, established in a
previous action, indicates that a herd plan sets out the steps to be
taken to eradicate CWD from a CWD-positive herd, among other things.
Completion of a herd plan is required to allow a herd enrolled in the
Federal CWD herd certification program to reenroll in the program after
it has been determined to be positive for or exposed to CWD. However,
as the goal of the CWD program is no longer to eliminate CWD from
farmed and captive cervids, the term ``eradicate'' may not be
appropriate; in some cases, a herd plan may seek to control CWD within
the herd, without necessarily depopulating the whole herd. For this
reason, we are amending the definition of herd plan to indicate that
such a plan will set out the steps to be taken to control the spread of
CWD from a CWD-positive herd.
Under Sec. 81.3, cervids moved directly to slaughter must, among
other things, be moved to a recognized slaughtering establishment. We
did not include in the June 2012 interim final rule a definition of the
term ``recognized slaughtering establishment.'' This omission could
cause confusion. Accordingly, we are adding a definition of recognized
slaughtering establishment to Sec. 81.1, which reads ``An
establishment where slaughtering operations are regularly carried out
under Federal or State inspection and which has been approved by the
Animal
[[Page 23891]]
and Plant Health Inspection Service to receive animals for slaughter.''
This definition is taken from the regulations governing the importation
of ruminants in Sec. 93.400 and is consistent with the intended
meaning of the term in Sec. 81.3.
Therefore, for the reasons given in the interim rule and in this
document, we are adopting the interim final rule as a final rule, with
the changes discussed in this document.
This action also affirms the information contained in the interim
rule concerning Executive Orders 12866, 13563, 12372, and 12988 and the
Paperwork Reduction Act.
Further, this action has been determined to be not significant for
the purposes of Executive Order 12866 and, therefore, has not been
reviewed by the Office of Management and Budget.
Regulatory Flexibility Act
This final rule follows an interim final rule that established a
Federal herd certification program for CWD and put in place interstate
movement restrictions to prevent CWD from spreading interstate. The
interim final rule specifically requested comments only on the issue of
our new preemption policy.
In accordance with 5 U.S.C. 604, we have performed a final
regulatory flexibility analysis, which is summarized below, regarding
the economic effects of this rule on small entities. 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 affirms prior regulatory actions that established a
voluntary herd certification program for the control of CWD in farmed
or captive cervids (deer, elk, and moose) in the United States. The
program regulations include CWD monitoring and testing requirements,
and set minimal requirements for interstate movement that will not
preempt more restrictive State or local laws or regulations. At
present, herd owners' interstate marketing decisions may need to
account for dissimilar State CWD certification regulations.
Herd owners who choose to participate in the herd certification
program will have to meet program requirements for animal
identification, testing, and herd management. Other than for cervids
moving to slaughter or for research, those that move interstate 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.
Some herd owners 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 herd certification
programs 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 Herd Certification Program in the national CWD herd certification
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. 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. An annual herd inventory--including a review of owner
records and an observation of the herd's unrestrained animals in a
viewable, enclosed area--will continue to be required, but the animals
will not necessarily need to be physically assembled and restrained.
The inventory cost is estimated to average about $25 to $30 per
deer or elk, including the animals' physical inventory once every 3
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 less
than 2 percent of the value of farmed or captive deer and elk.
All on-farm cervid mortalities and any cervids on herd inventories
sent to slaughter and hunt facilities must be tested to achieve
certified status. Thereafter, all on-farm mortalities of Certified
cervids will be required to be tested for CWD to maintain Certified
status. There also will be optional confirmatory DNA test provisions
for animals that test CWD-positive. CWD testing will entail submission
of the carcass or whole head for tissue sampling and testing, or
collection of the tissue samples by State officials, APHIS employees,
accredited veterinarians, or State-certified or -designated CWD sample
collectors. 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. Owners who
choose confirmatory DNA testing will consider it a benefit, as
evidenced by their payment for this voluntary, optional test.
Most cervid operations are small entities. The rule will have a
positive overall economic impact on affected entities large and small,
and for the U.S. cervid industries generally, in controlling the spread
of CWD and facilitating interstate and international trade in cervids
and cervid products.
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, the interim final rule amending 9 CFR parts 55 and 81
that was published at 77 FR 35542-35571 on June 13, 2012, is adopted as
a final rule with the following changes:
PART 55--CONTROL OF CHRONIC WASTING DISEASE
0
1. The authority citation for part 55 continues to read as follows:
Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
Sec. 55.1 [Amended]
0
2. In Sec. 55.1, the definition of herd plan is amended by removing
the word ``eradicate'' and adding the words ``control the spread of''
in its place.
PART 81--CHRONIC WASTING DISEASE IN DEER, ELK, AND MOOSE
0
3. The authority citation for part 81 continues to read as follows:
Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
0
4. In Sec. 81.1, a new definition of recognized slaughtering
establishment is added in alphabetical order to read as follows:
Sec. 81.1 Definitions.
* * * * *
[[Page 23892]]
Recognized slaughtering establishment. An establishment where
slaughtering operations are regularly carried out under Federal or
State inspection and which has been approved by the Animal and Plant
Health Inspection Service to receive animals for slaughter.
Done in Washington, DC, this 24th day of April 2014.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2014-09714 Filed 4-28-14; 8:45 am]
BILLING CODE 3410-34-P