[Federal Register Volume 62, Number 234 (Friday, December 5, 1997)]
[Rules and Regulations]
[Pages 64265-64266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31899]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 91 and 93

[Docket No. 94-076-2]


Cattle Imported In Bond for Feeding and Return to Mexico

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, with one change, an interim 
rule that amended the animal exportation and importation regulations by 
removing provisions that allowed the temporary, in-bond importation of 
cattle from Mexico into the United States for feeding and return to 
Mexico for slaughter. That interim rule was necessary because the U.S. 
Customs Service, to comply with provisions of the North American Free 
Trade Agreement, had discontinued its collection of duties and cash 
bonds on cattle imported into the United States from Mexico; without a 
cash bond, we were unable to meaningfully penalize importers who failed 
to return those cattle to Mexico. We continue to believe that the 
termination of the in-bond program was necessary to prevent the 
dissemination of animal diseases into the United States by in-bond 
cattle that may have remained in the United States in violation of the 
regulations.

EFFECTIVE DATE: January 5, 1998.

FOR FURTHER INFORMATION CONTACT: Dr. David Vogt, Senior Staff 
Veterinarian, National Center for Import and Export, VS, APHIS, 4700 
River Road Unit 39, Riverdale, MD 20737-1231; (301) 734-8170.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 9 CFR part 93 prohibit or restrict the 
importation of certain animals into the United States to prevent the 
introduction of communicable diseases of livestock and poultry. Subpart 
D of part 93 (Secs. 93.400 through 93.435), referred to below as the 
regulations, pertains to the importation of ruminants. Sections 93.424 
through 93.429 of the regulations contain specific provisions regarding 
the importation of ruminants, including cattle, from Mexico.

    Note: At the time the interim rule referred to in this document 
was published, the provisions described in the previous paragraph 
were located in 9 CFR part 92. However, on October 28, 1997, we 
published in the Federal Register (62 FR 56000-56026, Docket No. 94-
106-9) a final rule that redesignated part 92 as part 93. In 
describing the actions taken in the interim rule, we will use the 
part and section numbers used in the interim rule; where 
appropriate, however, we will cross-reference part 92 citations with 
their current locations in part 93.)

    In an interim rule published in the Federal Register on March 15, 
1995 (60 FR 13896-13898, Docket No. 94-076-1), and effective March 30, 
1995, we amended the regulations by removing Sec. 92.427(e), ``Cattle 
imported in bond for feeding and return to Mexico,'' in its entirety 
and by removing five references to the in-bond program that were found 
elsewhere in part 92 and in the animal export regulations in 9 CFR part 
91. Before the effective date of the interim rule, Sec. 92.427(e) of 
the regulations provided for the temporary importation of cattle from 
Mexico into the United States under U.S. Customs bond for feeding and 
return to Mexico for slaughter. Cattle imported under that in-bond 
program were exempt from some animal disease testing requirements that 
applied to the importation of other cattle from Mexico, but were 
subject to additional restrictions during the time they were in the 
United States that did not apply to other cattle imported from Mexico.
    We solicited comments concerning the interim rule for 60 days 
ending May 15, 1995. We received six comments by that date. They were 
from a foreign government, foreign and domestic trade associations and 
industry groups, and a customs brokerage. One of the commenters 
strongly supported the interim rule, while the remaining five 
commenters opposed the discontinuation of the program. Their comments 
are discussed below.
    Two commenters reported that they had experienced no problems with 
the in-bond program and felt that it could continue in the absence of a 
bond, but offered no specific evidence to support their position. 
Similarly, two other commenters stated that the in-bond program had 
presented no animal health problems in its 5 years of existence, so 
there was no reason to believe that the opposite would be true in the 
future. Those commenters stated that the safeguards contained in the 
in-bond program, such as the use of sealed vehicles for movement and 
the requirement that in-bond cattle be held in quarantined feedlots, 
had proven sufficient in the past to prevent the spread of disease, and 
could continue to do so. We agree that the quarantine and movement 
restrictions of the in-bond program were effective in mitigating the 
disease risk associated with in-bond cattle. However, as we stated in 
the interim rule, the actions of some importers led us to believe that 
the posting of a bond was necessary to ensure compliance with those 
provisions of the in-bond program. Without the authority to institute a 
bond system similar to that administered by the U.S. Customs Service at 
U.S. ports of entry on the Mexican border prior to January 1, 1994, we 
found that it was necessary to terminate the in-bond program in order 
to prevent animal diseases from being introduced into, and disseminated 
within, the United States.
    One commenter stated that the Animal and Plant Health Inspection 
Service (APHIS) was incorrect in claiming that cattle imported 
temporarily for feeding and return to Mexico were no longer covered by 
a bond; Customs bonds do still apply, the commenter argued, so the in-
bond program could continue. We noted in the interim rule that Customs 
and APHIS continued to allow temporary importations of cattle from 
Mexico even after January 1, 1994, when the Customs Service 
discontinued its collection of duties and cash bonds on imported 
Mexican cattle in order to comply with provisions of the North American 
Free Trade Agreement (NAFTA). From January 1, 1994, until March 30, 
1995, the effective date of the interim rule, the entry of those cattle 
was covered by a

[[Page 64266]]

paperwork-only bond, with no money involved, so in terms of a Customs 
bond being applied to temporary importations of Mexican cattle, the 
commenter is correct. Our interim rule should have stated that cattle 
imported for feeding and return to Mexico were no longer covered by a 
cash bond, and that it was the absence of any cash bond that led to our 
determination that the in-bond program should be terminated.
    One commenter contended that the interim rule violated the terms of 
NAFTA by instituting a sanitary measure without providing a risk 
assessment, considering alternatives and economic impacts, or providing 
the required 60-day notice to Mexico.
    The interim rule contained a discussion of the increased disease 
risks associated with the in-bond program and the measures that had 
been in place to mitigate those risks. As stated in the interim rule, 
the additional risks stemmed largely from the fact that in-bond cattle 
were exempted from meeting certain testing requirements for brucellosis 
and tuberculosis; those risks had been mitigated by the quarantine and 
movement restrictions of the in-bond program, and the cash bond had 
served to ensure that the quarantine and movement restrictions were 
observed. The termination of the in-bond program was based on our 
determination that the loss of the cash bond rendered our mitigating 
measures less effective than we believed was necessary.
    The interim rule also discussed alternatives to ending the in-bond 
program, e.g., continuing with a paperwork-only bond and the 
possibility of APHIS implementing its own bond system. Further, an 
economic analysis was provided in the interim rule to satisfy the 
requirements of Executive Order 12866 and the Regulatory Flexibility 
Act.
    With regard to the 60-day notice, NAFTA allows a party to omit such 
notice when the party considers it necessary to take measures to 
address an urgent problem relating to sanitary and phytosanitary 
protection. In such cases, the party must: (1) Immediately provide a 
notification of the measures, including a brief description of the 
urgent problem; (2) provide a copy of such measures upon request; and 
(3) allow other parties and interested persons to make comments in 
writing and, upon request, discuss such comments and take such comments 
and the results of such discussions into account. All three of those 
requirements were satisfied by the interim rule in that it provided 
notification of our termination of the in-bond program 15 days prior to 
the effective date of that action; set forth a description of the 
urgent problem that led us to publish the interim rule without prior 
opportunity for public comment; provided a full description of the 
measures we were taking; and provided a 60-day comment period during 
which interested persons could submit comments for APHIS' 
consideration.
    One commenter stated that the interim rule is an unjustified 
nontariff trade barrier because the rule was based not on animal health 
concerns, but on an administrative problem, i.e., the inability of the 
Customs Service to collect the bond. We disagree with that argument 
because Customs' inability to collect the bond is a reality mandated by 
NAFTA, not an ``administrative problem'' that could be solved by a 
change in procedure or a reallocation of resources. As explained above 
and in the interim rule, we found that the bond was an important factor 
in the enforceability of the restrictions designed to mitigate the 
higher disease risk posed by cattle imported under the in-bond program. 
If those restrictions were disregarded, there is the very real 
possibility that cattle that had not been tested for tuberculosis or 
brucellosis could be commingled with domestic livestock and spread 
disease; we regard that as an animal health concern.
    As noted above, the interim rule removed Sec. 92.427(e), which 
contained the in-bond program's provisions, and five references to 
those provisions found elsewhere in parts 91 and 92. Following the 
publication of the interim rule, it was brought to our attention that 
we failed to remove a sixth reference to the in-bond program from the 
regulations in Sec. 92.427(c)(2) (current Sec. 93.427(c)(2)). We are, 
therefore, removing that reference in this final rule.
    Therefore, based on the rationale set forth in the interim rule and 
in this document, we are adopting the provisions of the interim rule as 
a final rule with the change discussed in this document.
    This final rule also affirms the information contained in the 
interim rule concerning Executive Order 12866 and the Regulatory 
Flexibility Act, Executive Order 12372, and the Paperwork Reduction 
Act.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, 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.

List of Subjects

9 CFR Part 91

    Animal diseases, Animal welfare, Exports, Livestock, Reporting and 
recordkeeping requirements, Transportation.

9 CFR Part 93

    Animal diseases, Imports, Reporting and recordkeeping requirements.
    Accordingly, the interim rule amending 9 CFR parts 91 and 92 (now 9 
CFR parts 91 and 93) that was published at 60 FR 13896-13898 on March 
15, 1995, is adopted as a final rule with the change set forth below.

PART 93--IMPORTATION OF CERTAIN ANIMALS, BIRDS, AND POULTRY, AND 
CERTAIN ANIMAL, BIRD, AND POULTRY PRODUCTS; REQUIREMENTS FOR MEANS 
OF CONVEYANCE AND SHIPPING CONTAINERS

    1. The authority citation for part 93 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 2.22, 2.80, and 371.2(d).


Sec. 93.427  [Amended]

    2. In Sec. 93.427, in paragraph (c)(2), the second sentence is 
amended by removing the words ``or in bond for temporary entry in 
accordance with Sec. 93.427(e)''.

    Done in Washington, DC, this 1st day of December 1997.
Craig A. Reed,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 97-31899 Filed 12-4-97; 8:45 am]
BILLING CODE 3410-34-P