[Federal Register Volume 59, Number 178 (Thursday, September 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22849]


[[Page Unknown]]

[Federal Register: September 15, 1994]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 92

[Docket No. 93-137-3]

 

Importation of Ratites and Hatching Eggs of Ratites

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, with several changes, an 
interim rule that amended the regulations regarding the importation of 
ratites and hatching eggs of ratites. In this final rule, we are adding 
identification and certification requirements to those established by 
the interim rule. This action is necessary to help ensure that ratites 
and hatching eggs of ratites that could pose a disease risk to poultry 
and livestock in the United States are not imported into this country.

EFFECTIVE DATE: October 17, 1994.

FOR FURTHER INFORMATION CONTACT: Dr. Keith Hand, Senior Staff 
Veterinarian, Import-Export Animals Staff, National Center for Import-
Export, Veterinary Services, APHIS, USDA, room 768, Federal Building, 
6505 Belcrest Road, Hyattsville, MD 20782, (301) 436-5907.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 9 CFR part 92 (referred to below as the 
regulations) regulate the importation of certain animals and birds, 
including ostriches and other flightless birds known as ratites, and 
their hatching eggs, to prevent the introduction of communicable 
diseases of livestock and poultry.
    In an interim rule effective and published in the Federal Register 
on March 8, 1994 (59 FR 10729-10734, Docket No. 93-137-1), we amended 
the regulations by providing that ratites and hatching eggs of ratites 
may not be imported into the United States unless specified 
identification and recordkeeping requirements regarding their origin 
and movement are met in the country of export.
    We solicited comments concerning the interim rule for a 60-day 
comment period ending May 9, 1994. On July 5, 1994, we published in the 
Federal Register a notice (59 FR 34375, Docket No. 93-137-2) reopening 
and extending the comment period until July 20, 1994. We received a 
total of 10 comments on or before July 20. The commenters included 
ratite industry associations, a veterinary association, individual 
members of the general public, and representatives of foreign 
governments. Five of the commenters supported the rule as written. The 
other commenters either opposed the rule or suggested modifications to 
it. We discuss these comments below.
    One commenter objected to the fact that ratites may be imported 
only from countries in which the national government maintains a 
registry of premises where ratites or ratite hatching eggs are produced 
for export to the United States. The commenter stated that prohibiting 
the importation of ratites and ratite hatching eggs from countries that 
do not meet this requirement will deny Americans access to imports, and 
might ultimately lead to those countries' erecting trade barriers with 
the United States. The commenter suggested that the restrictions on 
importation should apply only to those countries in which smuggling has 
been demonstrated to have occurred. We are making no changes based on 
this comment. International trade in ratites and their hatching eggs 
often involves transhipping birds and eggs among several countries. 
Without the identification and recordkeeping requirements established 
by the interim rule, it is difficult to ensure that ratites and 
hatching eggs of ratites imported into the United States are from pen-
raised flocks.
    One commenter stated that the interim rule was not warranted by the 
incidence of disease found in imported ratites. According to the 
commenter, since the reinstatement of ratite importation [56 FR 31856-
31868, Docket No. 90-147, published in the Federal Register July 12, 
1991 and made effective August 12, 1991], no ostriches have been 
refused entry due to illness, two shipments of emus have been denied 
entry due to the detection of Salmonella, and one shipment of 
cassowaries and emus was denied entry due to the detection of an H5 
strain of avian influenza. We are making no changes based on this 
comment. As we stated in the background information of our interim 
rule, we consider the quarantine requirements that were in place prior 
to the interim rule to be effective in identifying and preventing the 
entry of ratites with communicable diseases. However, as we also stated 
in our interim rule, the increased risk presented by smuggled or wild-
caught ratites jeopardizes the health of other ratites in quarantine 
and unnecessarily increases the risk of the entry of a ratite with a 
communicable disease.
    Several commenters objected to the requirement that ratites 
produced in a flock from which ratites or hatching eggs of ratites are 
intended for importation into the United States be identified with an 
identification number by means of a microchip implanted in the pipping 
muscle at 1-day of age. One commenter stated that, although ostriches 
at birth have a relatively large neck and a bulbous pipping muscle, emu 
and rhea chicks have very slender necks with no visible pipping muscle, 
and are too small at birth to safely undergo implantation of a 
microchip. We do not agree that a microchip cannot be safely implanted 
in newly hatched emus and rheas. However, we agree with the commenter 
that the bulbous pipping muscle of the ostrich is not present in emus 
and rheas. Therefore, we are amending the regulations at 
Sec. 92.101(b)(3)(i)(B) to require that a microchip be implanted in the 
pipping muscle of each ostrich produced in a flock from which ratites 
or hatching eggs of ratites are intended to be imported into the United 
States, and that a microchip be implanted in the upper neck of ratites 
other than ostriches. We consider it necessary to implant the microchip 
in either the pipping muscle or the upper neck to facilitate reading of 
the microchip.
    Another commenter recommended that if the microchip is not 
implanted in the pipping muscle, the exact location of the microchip 
should be indicated on a stock registry, on an export certificate, and 
on an external form of identification on the ratite. We do not consider 
such information necessary if the microchip is implanted as discussed 
in the preceding paragraph.
    One commenter also recommended that, for what the commenter termed 
``practical reasons,'' microchipping be required not when the chick is 
1-day of age, but rather either within 1 day of the chick leaving the 
hatcher or, in the event of natural breeding and hatching, within 7 
days of the chick's hatching. We are making no changes based on this 
comment. We consider microchipping at the earliest possible date after 
hatching necessary to enable inspectors to ensure that all ratites in a 
flock are properly identified and are entered in the flock's register. 
We are unaware of any reason such microchipping cannot be done when the 
chicks are 1-day of age.
    One commenter suggested that the Animal and Plant Health Inspection 
Service (APHIS) should specify a location for implantation of 
microchips on older birds as well as chicks. The commenter stated that 
if ratites at some time become a source of food, it will be necessary 
to locate and remove the microchips, and that a standard location for 
implantation will facilitate that removal. We are making no changes 
based on this comment. Our experience enforcing the regulations has 
shown that relatively few ratites other than hatching eggs and chicks 
are imported into the United States. Those that are imported cannot at 
present be used for food, under U.S. Environmental Protection Agency 
regulations, because they are required by APHIS to be treated with a 
pesticide. Some of the relatively few older ratites imported into the 
United States, particularly emus, have already been microchipped by 
their owners for security purposes. These microchips have often been 
implanted other than in the neck of the ratites, and we do not believe 
it is necessary to require that the ratites be microchipped a second 
time.
    One commenter stated that the issue of the potential migration of 
implanted microchips within ratites should be evaluated. We recognize 
the possibility of the migration of an implanted microchip within a 
ratite. At this time, however, we consider microchip implantation to be 
the most reliable practical means of identifying ratites. Should an 
implanted microchip migrate from the area of implantation, it can still 
be located and read, although with greater difficulty than if it had 
not migrated. We recognize that it is possible that more effective 
means of identification may be developed in the future, and we will 
evaluate each method of identification as it is developed and tested.
    One commenter stated that, although using microchips for 
identification of ratites is more effective than banding the ratites, 
the only sure way of identifying ratites is through ``DNA 
fingerprinting,'' by having a blood sample analyzed at a laboratory. 
The commenter stated that microchips can be removed from one bird and 
placed in another, can migrate in a bird's body, and can become 
inactivated due to bumping or other harsh action. According to the 
commenter, DNA fingerprinting could be done as needed, with a certain 
number of ``fingerprints'' done randomly to ensure that breeders and 
importers are ``kept honest.'' We are making no changes based on this 
comment. Although we agree that ``DNA fingerprinting'' can be an 
effective means of identification, it does not offer the necessary 
speed of identification provided by microchipping.
    Our interim rule contained a requirement that each hatching egg 
produced in a flock from which ratites or hatching eggs of ratites are 
intended to be imported into the United States be marked in indelible 
ink with the date of production. One commenter recommended that these 
hatching eggs also be marked with a code identifying the premises of 
origin. We agree that such an identifying code would help ensure that 
hatching eggs have originated in the flock indicated on the export 
certificate, and we believe it would further aid identification of 
hatching eggs if each egg is identified as to the country of the flock 
of origin. Therefore, we are amending Sec. 92.101(b)(3)(i)(C) to 
require that, on the date it is produced, each hatching egg produced in 
the flock be marked with indelible ink with the date of production, and 
also be identified with indelible ink as to the country and the 
premises of the flock of origin. This identification must be in a form 
assigned by the national government of the country in which the flock 
is located.
    One commenter recommended that the regulations require that 
microchip readers provided to APHIS inspectors at the intended port of 
entry be capable of reading microchips produced by different 
manufacturers, so that APHIS inspectors would not have to maintain a 
number of different readers. We are making no changes based on this 
comment. Although we encourage standardization of microchips and 
readers, even if such standardization does not occur, it will not be 
necessary for APHIS inspectors to maintain a number of readers. Under 
the regulations, each importer of ratites is responsible for providing 
to APHIS inspectors the reader compatible with the microchips used for 
identification.
    Our interim rule included a requirement that a production ceiling 
for each premises be set, based on the number of eggs the ratites in a 
flock could reasonably be expected to produce over a given production 
season. We defined production season as that period of time, usually 
approximately 9 months each year, from the time ratites in a flock 
begin laying eggs until the ratites cease laying eggs. We stated in the 
background information to the interim rule that ratites by nature 
follow a set cycle for laying eggs, and, for reasons of health and 
productivity, must be given a period of rest between production 
seasons. One commenter disagreed with our definition of production 
season, and stated that a compulsory ``rest period'' is not necessary, 
because some farmers might deliberately manage their flocks in such a 
way as to export eggs throughout the entire year. We are making no 
changes based on this comment. Our definition of production season does 
not require a rest period. It merely describes what is standard 
practice in the ratite industry. However, it should be noted that 
Sec. 92.101(b)(3)(i)(H) prohibits the addition of ratites to a flock 
during a production season. Therefore, a ``rest period'' is necessary 
if an owner wishes to add ratites to his or her flock from outside the 
flock.
    Our interim rule included a requirement that the owner or manager 
of a premises from which ratites or hatching eggs of ratites are 
intended for importation into the United States maintain on a daily 
basis a register of the numbers of ratites and hatching eggs in the 
flock and the identification of the ratites. The interim rule required 
further that the owner or manager submit these registers to the 
National Veterinary Service of the country of export on a quarterly 
basis, and that the national government in turn submit a copy of the 
registers to the APHIS Administrator on a quarterly basis. One 
commenter stated that these registers will be of no use to the APHIS 
Administrator because, under the regulations, ratites from outside a 
flock may not be added to that flock during a production period. We do 
not agree that copies of the registers would be of no use to APHIS. A 
copy of a register would be useful to APHIS in those cases where there 
is some question as to whether a premises has exceeded its production 
ceiling. However, we agree it will not be necessary for APHIS to 
examine copies of registers in all cases. Therefore, in this final 
rule, we are amending Sec. 92.101(b)(3)(i)(E) to remove the requirement 
that registers be submitted on a quarterly basis, and to require, 
instead, that the National Veterinary Service of the country of export 
make copies of the registers available upon request to the 
Administrator.
    Under Sec. 92.101(b)(3)(i)(J) of the regulations established by the 
interim rule, when the National Veterinary Service of the country of 
export submits to APHIS copies of registers on a quarterly basis, it 
also must indicate whether all ratites and hatching eggs of ratites on 
a premises are identified as required. Because in this final rule we 
are removing the requirement that registers be submitted on a quarterly 
basis, we are also removing the requirement in Sec. 92.101(b)(3)(i)(J) 
that the country of export indicate on a quarterly basis whether all 
ratites and hatching eggs of ratites are identified as required. 
However, as required by the interim rule, some of this information is 
available to APHIS through other certification. In Secs. 92.104(c) and 
(d), an export certificate must include, among other things, 
certification that all ratites in the flock of origin have been 
identified as required. In this final rule, we are adding to 
Secs. 92.104(c) and (d) the requirement that the export certificate 
also include certification that all hatching eggs in the flock of 
origin have been marked as required.
    One commenter, a representative of a country from which ratites and 
hatching eggs of ratites are imported into the United States, stated 
that it is important to reduce the annual ceiling for a flock if laying 
ratites are removed from the premises. We agree that, because the 
production ceiling for a flock is dependent on the number of ratites 
mature enough to lay eggs, the ceiling should be reduced if laying hens 
are removed from the flock. We are therefore adding to 
Secs. 92.104(c)(15) and (d)(11) the requirement that the export 
certificate that accompanies shipments of ratites or hatching eggs of 
ratites to the United States indicate the number of ratite laying hens 
in the flock of origin. We are also revising Sec. 92.101(b)(3)(i)(I) to 
require that the production ceiling be adjusted according to changes in 
the number of laying hens in the flock.
    One commenter stated that the keeping of a control register for 
identification of ratites should not necessarily be the responsibility 
of the official veterinary authority of the country of exportation, but 
should instead be allowed to be the responsibility of a recognized 
body, as agreed upon by the APHIS Administrator. It is not clear to us 
what type of ``recognized body'' the commenter is referring to. We do 
not consider it appropriate for an entity other than an agency of the 
national government of the country of export to maintain the required 
registry. Under the regulation as written, a government agency other 
than the official veterinary authority is not precluded from 
maintaining the registry of premises that wish to export ratites or 
hatching eggs of ratites to the United States. Therefore, we are making 
no changes based on this comment.
    Several commenters addressed issues outside the scope of the 
interim rule, concerning functions required to be carried out by 
veterinarians in the country from which the ratites or hatching eggs 
are to be exported. The functions the commenters addressed were already 
required under the regulations prior to publication of the interim 
rule.

Miscellaneous

    We are making a wording correction to Sec. 92.104(c)(14). The 
provisions in Sec. 92.104(c) pertain to ratites other than hatching 
eggs that are intended for importation into the United States. However, 
in Sec. 92.104(c)(14) of our interim rule, we made reference to 
``hatching eggs'' when our intent, consistent with the rest of 
Sec. 92.104(c), was to refer to ``ratites.'' In this final rule, we are 
correcting this reference.
    In this final rule, we are also making several nonsubstantive 
changes to part 92, to update addresses in footnotes and to correct an 
incorrect paragraph reference.
    Therefore, based on the rationale set forth in the interim rule and 
in this document, we are adopting the provisions of this interim rule 
as a final rule, with the changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been reviewed under Executive Order 12866. The 
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.
    This final rule requires that foreign producers of ratites or 
ratite hatching eggs intended for importation into the United States 
identify all ratite eggs in the flock as to premises and country. It 
also requires that such identification be certified on an export 
certificate, that the export certificate also indicate the number of 
ratite laying hens in the flock, and that the production ceiling for a 
flock be adjusted according to changes in the number of laying hens in 
the flock.
    At present 99 ratite farms in 13 countries are approved to ship 
ratites or ratite hatching eggs to the United States. The number of 
approved foreign farms varies each month due to annual recertification 
requirements.
    We anticipate that requiring the identification and certification 
set forth in this rule will have little or no economic impact. Hatching 
eggs must already be marked on the premises of origin as to date of 
production. The additional cost to also identify the hatching eggs as 
to premises and country is expected to be negligible. Also, the 
certification required by this rule is in addition to certification 
already required on an export certificate, and is expected to have 
little or no economic impact.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12778

    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 
et seq.), the information collection or recordkeeping requirements 
included in this rule have been submitted for approval to the Office of 
Management and Budget.

List of Subjects in 9 CFR Part 92

    Animal disease, Imports, Livestock, Poultry and poultry products, 
Quarantine, Reporting and recordkeeping requirements.

    Accordingly, the interim rule amending 9 CFR part 92 that was 
published at 59 FR 10729-10734 on March 6, 1994, is adopted as a final 
rule with the following changes:

PART 92--IMPORTATION OF CERTAIN ANIMALS AND POULTRY PRODUCTS; 
INSPECTION AND OTHER REQUIREMENTS FOR CERTAIN MEANS OF CONVEYANCE 
AND SHIPPING CONTAINERS THEREON

    1. The authority citation for part 92 continues to read as follows:

    Authority: 7 U.S.C. 1622; 19 U.S.C. 1306; 21 U.S.C. 102-105, 
111, 114a, 134a, 134b, 134c, 134d, 134f, 135, 136, and 136a; 31 
U.S.C. 9701; 7 CFR 2.17, 2.51, and 371.2(d).

    2. In Sec. 92.101, paragraphs (b)(3)(i)(B) and (b)(3)(i)(C), the 
second sentence of (b)(3)(i)(E), and the second sentence of 
(b)(3)(i)(I) are revised to read as set forth below; paragraph 
(b)(3)(i)(J) is amended by removing the reference to ``(b)(3)(i)(D) and 
(b)(3)(i)(E)'' and adding ``(b)(3)(i)(B) and (b)(3)(i)(C)'' in its 
place; and paragraph (b)(3)(i)(J) is amended by removing the word 
``quarterly'' in the last sentence.


Sec. 92.101  General prohibitions; exceptions.

* * * * *
    (b) * * *
    (3) * * *
    (i) * * *
    (B) Each ratite produced in the flock is identified with an 
identification number by means of a microchip implanted at 1-day of age 
in the pipping muscle of ostriches and in the upper neck of other 
ratites, each ratite added from outside the flock is identified in like 
manner upon arrival in the flock, except that the microchip need not be 
implanted in the pipping muscle or the upper neck, and each ratite 
already in the flock as of March 8, 1994 is identified in like manner, 
prior to the next visit to the flock premises by an APHIS 
representative under Sec. 92.103(a)(2)(iii), except that the microchip 
need not be implanted in the pipping muscle or the upper neck;
    (C) On the date it is produced, each hatching egg produced in the 
flock is marked in indelible ink with the date of the production, and 
with identification, assigned by the national government of the country 
of export, of the premises and country from which the ratites or 
hatching eggs are intended for exportation;
* * * * *
    (E) * * * The country of export in turn submits a copy of the 
registers to the Administrator upon his or her request;2
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    \2\Copies should be mailed to Administrator, c/o Import/Export 
Animals Staff, National Center for Import-Export, Veterinary 
Services, APHIS, USDA, Federal Building, 6505 Belcrest Road, 
Hyattsville, MD 20782.
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* * * * *
    (I) * * * The ceiling for each premises is calculated jointly by a 
full-time salaried veterinary officer of the national government of the 
country of export and the APHIS representative who conducts the site 
visit required under Sec. 92.103(a)(2)(iii), and is adjusted jointly by 
an APHIS representative and a full-time salaried veterinary officer of 
the national government of the country of export according to changes 
in the number of laying hens in the flock;
* * * * *


Sec. 92.103  [Amended]

    3. In Sec. 92.103, footnote 9 is revised to read ``The addresses of 
USDA quarantine facilities may be found in telephone directories 
listing the facilities or by contacting the Administrator, c/o Import-
Export Animals Staff, National Center for Import-Export, Veterinary 
Services, APHIS, USDA, Federal Building, 6505 Belcrest Road, 
Hyattsville, MD 20782.''
    4. Section 92.104 is amended by redesignating paragraphs (c)(15) 
and (c)(16) as paragraphs (c)(16) and (c)(17), respectively; by adding 
new paragraphs (c)(15) and (d)(11); and by revising paragraphs (c)(14) 
and (d)(10), to read as follows:


Sec. 92.104  Certificate for pet birds, commercial birds, zoological 
birds, and research birds.

* * * * *
    (c) * * *
    (14) That all ratites in the flock from which the ratites come were 
identified in accordance with Sec. 92.101(b)(3)(i)(B), and that all 
ratite hatching eggs in the flock were identified in accordance with 
Sec. 92.101(b)(3)(i)(C);
    (15) The number of ratite laying hens in the flock from which the 
ratites come;
* * * * *
    (d) * * *
    (10) That all ratites in the flock from which the hatching eggs 
come were identified in accordance with Sec. 92.101(b)(3)(i)(B), and 
that all ratite hatching eggs in the flock were identified in 
accordance with Sec. 92.101(b)(3)(i)(C).
    (11) The number of ratite laying hens in the flock from which the 
hatching eggs come.


Sec. 92.106  [Amended]

    5. Section 92.106 is amended by revising footnote 11 to read ``A 
list of approved vaccines is available from the Administrator, c/o 
Import-Export Animals Staff, National Center for Import-Export, 
Veterinary Services, APHIS, USDA, Federal Building, 6505 Belcrest Road, 
Hyattsville, MD 20782.''

    Done in Washington, DC, this 9th day of September 1994.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 94-22849 Filed 9-14-94; 8:45 am]
BILLING CODE 3410-34-P