[Federal Register Volume 63, Number 35 (Monday, February 23, 1998)]
[Rules and Regulations]
[Pages 8837-8840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4490]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 77

[Docket No. 97-062-1]


Tuberculosis Testing of Livestock Other Than Cattle and Bison

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the tuberculosis regulations to include 
species of livestock other than cattle and bison in the requirement for 
two annual herd tests for newly assembled herds on premises where a 
tuberculous herd has been depopulated. This requirement is necessary 
because, without testing, such livestock could become infected and 
spread tuberculosis to the cattle or bison in the herd before the 
disease was detected in the herd. Adding this requirement to the 
tuberculosis regulations will help ensure continued progress toward 
eradicating tuberculosis in the U.S. livestock population.

DATES: Interim rule effective February 23, 1998. Consideration will be 
given only to comments received on or before April 24, 1998.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 97-062-1, Regulatory Analysis and Development, PPD, APHIS, 
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please 
state that your comments refer to Docket No. 97-062-1. Comments

[[Page 8838]]

received may be inspected at USDA, room 1141, South Building, 14th 
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 
4:30 p.m., Monday through Friday, except holidays. Persons wishing to 
inspect comments are requested to call ahead on (202) 690-2817 to 
facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Dr. James P. Davis, Senior Staff 
Veterinarian, National Animal Health Programs, VS, APHIS, 4700 River 
Road Unit 36, Riverdale, MD 20737-1231, (301) 734-7727; or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Bovine tuberculosis is the contagious, infectious, and communicable 
disease caused by Mycobacterium bovis. The regulations in 9 CFR part 
77, ``Tuberculosis'' (referred to below as the regulations), regulate 
the interstate movement of cattle and bison because of tuberculosis. 
Cattle or bison not known to be affected with or exposed to 
tuberculosis may be moved interstate without restriction if those 
cattle or bison are moved from a State designated as an accredited-
free, accredited-free (suspended), or modified accredited State. The 
regulations restrict the interstate movement of cattle or bison not 
known to be affected with or exposed to tuberculosis if those cattle or 
bison are moved from a nonmodified accredited State.
    The status of a State is based on its freedom from evidence of 
tuberculosis in cattle and bison, the effectiveness of the State's 
tuberculosis eradication program, and the degree of the State's 
compliance with the standards contained in a document titled ``Uniform 
Methods and Rules--Bovine Tuberculosis Eradication'' (referred to below 
as the UM&R), which, as explained in the definition of Uniform Methods 
and Rules--Bovine Tuberculosis Eradication in Sec. 77.1, has been 
incorporated by reference into the regulations.
    Under the provisions of the UM&R, disclosure of tuberculosis in any 
herd must be followed by a complete epidemiologic investigation to 
determine the source of the infection in the herd and delimit the 
possible spread of the disease from the herd. Given the serious effects 
of the disease and the need to contain its spread, the Animal and Plant 
Health Inspection Service (APHIS) believes that every effort needs to 
be made to ensure the immediate elimination of tuberculosis from all 
species of domestic livestock on the affected premises. The most 
effective and immediate means of eliminating tuberculosis from a 
premises is the depopulation--i.e., removal directly to slaughter--of 
the entire herd.
    When an affected herd has been depopulated, there is still some 
risk that the bovine tuberculosis disease agent, M. bovis, could 
persist on the premises from which the affected herd was removed. 
Because of that risk, the UM&R requires that two annual herd tests be 
applied to all cattle and bison in a newly assembled herd on premises 
where a tuberculous herd has been depopulated, with the first test 
being applied approximately 6 months after the assembly of the new 
herd. These two tests are intended to ensure that the animals in the 
new herd have not been infected with tuberculosis through environmental 
exposure to M. bovis remaining on the premises. The provisions of the 
UM&R do, however, recognize that the M. bovis organism cannot persist 
indefinitely in the environment without an animal host. Thus, the UM&R 
provides that the requirement for two annual herd tests for a newly 
assembled herd can be waived if the premises has remained vacant--i.e, 
free of livestock--for 1 year or more.
    We believe that the testing requirement described in the previous 
paragraph is a necessary and sound approach to reducing the risk of 
tuberculosis being introduced into a newly assembled herd on a premises 
where a tuberculous herd has been depopulated. Because the UM&R 
currently incorporated specifically calls for the herd tests to be 
applied to all cattle and bison, the herd test requirement does not 
extend to other species of livestock that may be included in a new 
herd. However, it is becoming increasingly common for herd owners to 
maintain mixed groups of livestock on common ground, with cattle and 
bison commingling with animals such as llamas, alpacas, or captive 
deer. These other species are as susceptible to tuberculosis as cattle 
or bison and are capable of spreading the disease to, or contracting 
the disease from, the other livestock in the herd. Thus, the UM&R's 
omission of livestock other than cattle and bison from the herd testing 
requirement makes it possible for tuberculosis-infected livestock to be 
present in a mixed herd without being diagnosed, which could result in 
the herd's cattle or bison becoming infected with tuberculosis.
    This potential risk presented by other species of livestock is 
recognized in our regulations in 9 CFR part 50, which provide for the 
payment of indemnity to the owners of animals destroyed because of 
tuberculosis. Specifically, Sec. 50.14(f) of those regulations provides 
that a claim for compensation for exposed cattle, bison, or cervids 
destroyed during a herd depopulation will not be allowed if a 
designated epidemiologist determines that exotic bovidae (such as 
antelope) or other species of livestock in the herd were exposed to 
tuberculosis by reason of association with tuberculous livestock but 
were not destroyed as part of the herd depopulation. This basis for the 
denial of a compensation claim is intended to encourage herd owners to 
destroy all exposed livestock in a herd, not just the cattle, bison, or 
cervids for which compensation would be paid. This ensures that when 
the cattle, bison, or cervids in an affected herd are depopulated, 
other exposed species do not remain on the premises to infect the 
healthy livestock with which the owner reassembles the herd.
    Given that the risk of tuberculosis exposure applies to all the 
livestock--not just the cattle and bison--in a newly assembled herd on 
a premises where a tuberculous herd was depopulated, we believe that it 
is necessary to include other species of livestock in the requirement 
for two annual herd tests for such herds. To do so, we have amended the 
definitions of Accredited-free (suspended) State and Modified 
accredited State in Sec. 77.1 of the regulations. To support those 
changes, we have also amended the definition of herd in Sec. 77.1 and 
have added a definition for livestock to that section.
    The definition of Accredited-free (suspended) State provides that a 
State with the status of an accredited-free State is designated as 
accredited-free (suspended) if tuberculosis is detected in any cattle 
or bison in the State. Such a State will qualify for redesignation as 
an accredited-free State after the herd in which tuberculosis is 
detected has been quarantined, an epidemiological investigation has 
confirmed that the disease has not spread from the herd, and all 
reactor cattle and bison have been destroyed. The definition of 
Modified accredited State provides, in part, that a State must comply 
with all the provisions of the UM&R regarding modified accredited 
States, and must apply those provisions to bison in the same manner as 
to cattle, in order to establish or maintain status as a modified 
accredited State. To each of those definitions, we have added the 
further requirement that if any livestock other than cattle or bison 
are included in a newly assembled herd on a premises where a 
tuberculous herd has been depopulated, the State must apply

[[Page 8839]]

the herd test requirements of the UM&R for such newly assembled herds 
to those other livestock in the same manner as to cattle and bison.
    Because, as discussed above, the composition of a herd may not be 
limited to cattle or bison, we have also amended the definition of herd 
in Sec. 77.1. The scope of the definition had been limited to groups of 
cattle, bison, or both; as amended by this interim rule, the definition 
of herd now includes other livestock. We have also added the following 
definition of livestock: ``Cattle, bison, cervids, swine, dairy goats, 
and other hoofed animals (such as llamas, alpacas, and antelope) raised 
or maintained in captivity for the production of meat and other 
products, for sport, or for exhibition.'' These two definitions are the 
same as those already provided for those terms in Sec. 50.1 of the 
tuberculosis indemnity regulations.

Applicability to State Tuberculosis Status

    Although this interim rule provides for the testing of all 
livestock in a newly assembled herd on a premises where a tuberculous 
herd has been depopulated, a State's tuberculosis status will continue 
to be based on the presence or absence of tuberculosis in cattle or 
bison in herds within the State. The intent of this interim rule is to 
provide for the identification and elimination of potential sources of 
tuberculosis infection in those newly assembled herds when they contain 
cattle or bison and other livestock. The detection of tuberculosis in 
livestock other than cattle and bison in a herd as a result of the 
testing provisions of this interim rule will not affect a State's 
tuberculosis status unless it is conclusively determined, in accordance 
with the existing regulations and the provisions of the UM&R, that 
tuberculosis infection is also present in the herd's cattle or bison.

Immediate Action

    The Administrator of the Animal and Plant Health Inspection Service 
has determined that there is good cause for publishing this interim 
rule without prior opportunity for public comment. Immediate action is 
warranted to change the regulations in order to close a loophole in the 
herd testing requirements that could result in the spread of 
tuberculosis within mixed herds of cattle, bison, and other species of 
livestock. Without this testing requirement, it is possible for a 
tuberculosis-infected animal to spread the disease throughout a newly 
assembled herd, and for the disease to remain undetected until the 
cattle or bison in the herd are tested for tuberculosis. Two notable 
examples of tuberculosis being spread in this way occurred in 1992. In 
the State of New York, two dairy herds were depopulated after cattle in 
the herds were found to be infected with tuberculosis, and an 
additional 18 dairy herds were quarantined and tested. It was 
determined that the cattle in one of the herds that was depopulated had 
been exposed to tuberculous cervids that shared the premises. 
Similarly, tuberculosis was found in beef cattle in Pennsylvania that 
had been in contact with tuberculous cervids in the herd. As a result 
of these outbreaks, New York and Pennsylvania lost their accredited-
free State status. Further, in one State there is a premises where 
cattle and bison were depopulated because of bovine tuberculosis, but 
other livestock exposed to the tuberculous cattle and bison remained 
after the depopulation. These exposed livestock have now commingled 
with the newly reassembled cattle and bison on that same premises. It 
is necessary to immediately implement this interim rule to ensure that 
all livestock on that premises have been properly tested before 
upgrading the State's tuberculosis status to accredited-free.
    Because prior notice and other public procedures with respect to 
this action are impracticable and contrary to the public interest under 
these conditions, we find good cause under 5 U.S.C. 553 to make it 
effective upon publication in the Federal Register. We will consider 
comments that are received within 60 days of publication of this rule 
in the Federal Register. After the comment period closes, we will 
publish another document in the Federal Register. It will include a 
discussion of any comments we receive and any amendments we are making 
to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. 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 interim rule amends the tuberculosis regulations by including 
species of livestock other than cattle and bison in the requirement for 
two annual herd tests for newly assembled herds on premises where a 
tuberculous herd has been depopulated. We are taking this action 
because, without testing, such livestock could become infected and 
spread tuberculosis to the cattle or bison in the herd before the 
disease was detected in the herd. Adding this requirement to the 
tuberculosis regulations will help ensure continued progress toward 
eradicating tuberculosis in the U.S. livestock population.
    The U.S. livestock industry relies on healthy animals for its 
economic well-being, and the industry's role in the U.S. economy is 
significant. As an example, the total value of U.S. livestock output in 
1991 was $66.6 billion, about half of the value of all agricultural 
production in the United States for that year. The value of live animal 
exports and exports of meat products totaled $4.3 billion in 1991, 
equivalent to 10 percent of the value of all U.S. agricultural exports 
that year. In 1996, there were 1,194,390 domestic operations with 
cattle and calves, and the inventory of cattle and calves at the end of 
that year stood at 101.2 million head with a value of more than $52 
billion (U.S. Department of Agriculture, National Agricultural 
Statistics Service, ``Agricultural Statistics 1995-96,'' Table 370).
    Recent studies on the economic impact of bovine tuberculosis in the 
United States are not available. However, a comprehensive computer 
model developed by Canada in 1979 indicates that, if the United States' 
tuberculosis eradication program were discontinued, annual losses in 
the United States would exceed $1 billion. Another study, conducted in 
1972, concluded that APHIS' tuberculosis eradication program was fully 
justified from an economic standpoint, as benefits exceeded costs by a 
margin of 3.64 to 1.1
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    \1\ Information about these studies can be obtained by 
contacting the person listed under FOR FURTHER INFORMATION CONTACT.
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    The Regulatory Flexibility Act requires that agencies consider the 
economic impact of rule changes on small entities. The entities 
potentially affected by this rule change are herd owners, most of whom 
are classified as small entities under the Small Business 
Administration's (SBA's) criteria. In 1992, for example, 92 percent of 
all 1,074,349 farms in the U.S. with cattle inventory had herds of 
fewer than 200 cattle (U.S. Department of Commerce, ``1992 Census of 
Agriculture,'' 1993). In that same year, 98 percent of all 921,695 
livestock and dairy farms in the United States had sales of less than 
$0.5 million, the small entity size standard established by the SBA for 
firms engaged in livestock and animal specialty services.
    This interim rule is not expected to have a significant economic 
impact on a substantial number of herd owners, large or small, for 
several reasons. First,

[[Page 8840]]

only a very small percentage of herds will be affected. It is estimated 
that only about 1 percent of all herds in the United States are mixed 
herds comprised of both cattle and/or bison and other species of 
livestock. Second, the testing of these other species of livestock will 
be conducted by Federal or State veterinary medical officers at no cost 
to herd owners. Herd owners will have to bear the cost of presenting 
the animals for testing, but that cost should be minimal in most cases. 
Only in rare situations, such as those where exotic animals have to be 
sedated, would the cost of presenting animals exceed minimal levels. 
Third, if it is necessary to destroy cattle or bison that have been 
identified as tuberculosis-exposed on the basis of a herd test that 
considers livestock other than cattle and bison, the economic impact on 
herd owners will be mitigated, if not entirely offset, by the payment 
of indemnity by APHIS.
    For the reasons stated above, this interim rule is not expected to 
have an adverse impact on a significant number of herd owners. Indeed, 
herd owners are more likely to benefit over time as continued progress 
toward the eradication of tuberculosis serves to enhance livestock 
values.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

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

Executive Order 12988

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

Paperwork Reduction Act

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

List of Subjects in 9 CFR Part 77

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

    Accordingly, 9 CFR part 77 is amended as follows:

PART 77--TUBERCULOSIS

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

    Authority: 21 U.S.C. 111, 114, 114a, 115-117, 120, 121, 134b, 
and 134f; 7 CFR 2.22, 2.80, and 371.2(d).

    2. Section 77.1 is amended as follows:
    a. In the definition of Accredited-free (suspended) State, 
paragraph (1)(ii) is revised to read as set forth below.
    b. The definition of Herd is revised to read as set forth below.
    c. A definition of Livestock is added, in alphabetical order, to 
read as set forth below.
    d. In the definition of Modified accredited state, paragraph (1)(i) 
is revised to read as set forth below.


Sec. 77.1  Definitions.

* * * * *
    Accredited-free (suspended) State. (1) * * *
    (ii) A State is qualified for redesignation of accredited-free 
status after the herd in which tuberculosis is detected has been 
quarantined, an epidemiological investigation has confirmed that the 
disease has not spread from the herd, and all reactor cattle and bison 
have been destroyed. If any livestock other than cattle or bison are 
included in a newly assembled herd on a premises where a tuberculous 
herd has been depopulated, the State must apply the herd test 
requirements of the ``Uniform Methods and Rules--Bovine Tuberculosis 
Eradication'' for such newly assembled herds to those other livestock 
in the same manner as to cattle and bison.
* * * * *
    Herd. Any group of livestock maintained on common ground for any 
purpose, or two or more groups of livestock under common ownership or 
supervision, geographically separated but that have an interchange or 
movement of livestock without regard to health status, as determined by 
the Administrator.
* * * * *
    Livestock. Cattle, bison, cervids, swine, dairy goats, and other 
hoofed animals (such as llamas, alpacas, and antelope) raised or 
maintained in captivity for the production of meat and other products, 
for sport, or for exhibition.
    Modified accredited State. (1)(i) To establish or maintain status 
as a modified accredited State, a State must comply with all of the 
provisions of the ``Uniform Methods and Rules--Bovine Tuberculosis 
Eradication'' regarding modified accredited States, and must apply 
these provisions to bison in the same manner as to cattle. Further, if 
any livestock other than cattle or bison are included in a newly 
assembled herd on a premises where a tuberculous herd has been 
depopulated, the State must apply the herd test requirements of the 
``Uniform Methods and Rules--Bovine Tuberculosis Eradication'' for such 
newly assembled herds to those other livestock in the same manner as to 
cattle and bison. Modified accredited State status must be renewed 
annually.
* * * * *
    Done in Washington, DC, this 18th day of February 1998.
Craig A. Reed,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-4490 Filed 2-20-98; 8:45 am]
BILLING CODE 3410-34-P