[Federal Register Volume 64, Number 137 (Monday, July 19, 1999)]
[Rules and Regulations]
[Pages 38548-38551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18320]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 94

[Docket No. 98-028-2]


Importation of Poultry Products

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations for importing animal products 
to allow the importation of poultry carcasses and parts or products of 
poultry carcasses from regions where exotic Newcastle disease (END) is 
considered to exist if they originated in a region free of END and meet 
certain conditions with respect to processing and shipping. This action 
removes some restrictions on the importation of poultry products from 
regions where END is considered to exist. We believe the conditions for 
importation will continue to protect the United States from END.

EFFECTIVE DATE: July 19, 1999.

FOR FURTHER INFORMATION CONTACT: Dr. Michael David, Senior Staff 
Veterinarian, Animals and Germplasm Programs, National Center for 
Import and Export, VS, APHIS, 4700 River Road Unit 39, Riverdale, MD 
20737; (301) 734-5034; or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in 9 CFR part 94 govern the importation of certain 
animals, birds, poultry, meat, animal products, animal byproducts, hay, 
and straw into the United States in order to prevent the introduction 
of communicable diseases of livestock and poultry. The regulations in 
Sec. 94.6 (referred to below as the regulations) govern, among other 
things, the importation of poultry carcasses, parts, and products from 
regions where exotic Newcastle disease (END) is considered to exist.
    Under the regulations in place when our proposed rule was 
published, poultry carcasses and parts or products of poultry carcasses 
could be imported into the United States from regions where END was 
considered to exist if certain conditions were met, such as the poultry 
carcasses were sent to an approved museum, were hermetically sealed and 
cooked, or were thoroughly cooked. The regulations were described in 
greater detail in the proposed rule.
    On December 9, 1998, we published in the Federal Register (63 CFR 
67809-67813, Docket No. 98-028-1) a proposal to amend Sec. 94.6 to 
allow poultry carcasses and parts or products of poultry carcasses to 
be imported into the United States from regions where END is considered 
to exist if they originated in a region free of END and meet certain 
requirements with respect to processing and shipping.
    We solicited comments concerning our proposal for 60 days ending 
February 8, 1999. We received six comments by that date. They were from 
representatives of State governments, trade associations, and the 
scientific community. Four commenters supported the proposed rule. Two 
commenters expressed concern that the proposed rule would have negative 
effects on the U.S. domestic poultry processing industry. Their 
concerns are addressed below.
    Comment: The proposed ``system'' of poultry carcass export, 
processing, and reimportation cannot be assured to be risk free. There 
is no inspection or enforcement system strong enough to ensure that END 
will not be introduced into the United States.
    Response: If zero tolerance for disease risk were the standard 
applied to international trade in agricultural commodities, it is quite 
likely that no country would ever be able to export a fresh animal 
product to any other country. There will always be some degree of 
disease risk associated with the movement of animal products; APHIS' 
goal is to reduce that risk to an insignificant level. For the reasons 
explained in the proposed rule, we believe that the safeguards 
contained in this final rule will reduce the disease risk associated 
with the importation of poultry carcasses and parts or products of 
poultry carcasses to an insignificant level.
    Comment: The current import restrictions for Mexican poultry are 
consistent with the United States obligations under the North American 
Free Trade Agreement (NAFTA), Article 712.1, and do not require 
amendment.
    Response: Article 712.1 of NAFTA states.

    Each [country] may, in accordance with this Section, adopt, 
maintain, or apply any sanitary or phytosanitary measure necessary 
for the protection of human, animal, or plant life or health in its 
territory, including a measure more stringent than an international 
standard, guideline, or recommendation.

    While Article 712.1 allows a country to adopt measures more 
stringent than an international standard, we believe other NAFTA 
Articles, including

[[Page 38549]]

Articles 712.5 and 715.3, obligate us to take this action. Under 
Article 712.5:

    Each [country] shall ensure that any sanitary or phytosanitary 
measure that it adopts, maintains, or applies is applied only to the 
extent necessary to achieve its appropriate level of protection . . 
.

    Further, Article 715.3 states:
    Each [country], in establishing its appropriate level of 
protection . . . should take into account the objective of 
minimizing negative trade effects.

    The Mexican Government requested the change we are making in this 
rule. This rule will allow poultry carcasses and parts or products of 
poultry carcasses from regions that are free of END to be imported into 
the United States via another region where END is considered to exist, 
provided the meat or other products have been safeguarded as specified 
in this rule to prevent contamination. We have determined that such 
poultry meat or other poultry products will not present a significant 
risk of introducing END into the United States. Therefore, we believe 
we are obligated under NAFTA to proceed with this action.
    Comment: The major result of the proposal would be to encourage the 
export of poultry carcasses from the United States to Mexico for 
processing with the finished product returned to the United States for 
final sale. The proposal would lead to the establishment of a poultry 
processing industry in Mexico, where worker safety and health and 
environmental standards are lax.
    Response: As stated below in our Final Regulatory Flexibility 
Analysis, we cannot determine the extent to which this rule will 
encourage, or result in, increased volumes of poultry to be exported 
from the United States for processing in Mexico. However, it is likely 
that any increased poultry production would be a small percentage of 
Mexico's total poultry production. Further, we believe it is highly 
unlikely that new processing facilities will be constructed 
specifically to process poultry eligible for export to the United 
States under this rule, since there is already a large poultry 
processing industry in place in Mexico. Because the poultry eligible 
for export under this rule would likely be processed in existing 
facilities and would represent a small percentage of Mexico's total 
production, this rule would likely have a minimal effect on worker 
health and safety and the environment.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register. This action removes 
some restrictions on the importation of poultry products from regions 
where END is considered to exist. Therefore, the Administrator of the 
Animal and Plant Health Inspection Service has determined that this 
rule should be effective upon publication in the Federal Register.

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.
    In accordance with 5 U.S.C. 604, we have performed a Final 
Regulatory Flexibility Analysis, which is set out below, regarding the 
economic effects of this rule on small entities.
    This rule amends the regulations for importing animal products to 
allow the importation of poultry carcasses and parts or products of 
poultry carcasses from regions where exotic Newcastle disease (END) is 
considered to exist if they originated in a region free of END and meet 
certain conditions with respect to processing and shipping. This rule 
removes some restrictions on the importation of poultry carcasses and 
parts or products of poultry carcasses from regions where END is 
considered to exist. As stated in our proposal, the most likely outcome 
of this rule is that U.S.-origin poultry carcasses and parts or 
products of poultry carcasses would be shipped to Mexico for processing 
and then returned to the United States.
    In our proposal, we solicited comments on the potential effects of 
the proposed action on small entities. In particular, we sought data 
and other information to determine the number and kind of small 
entities that may incur benefits or costs from the implementation of 
the proposed rule. We received no comments providing specific data in 
relation to the proposed rule's Initial Regulatory Flexibility 
Analysis, but two of the commenters expressed concern that the proposal 
could negatively affect U.S. poultry processing establishments that 
could lose business to less costly Mexican processing operations.
    Our Initial Regulatory Flexibility Analysis agreed that it is 
possible that, under this rule, U.S. producers would ship poultry 
carcasses or products to Mexico for processing to take advantage of 
lower processing costs or to use Mexican processing plants as 
supplements to the existing U.S. workforce and facilities. However, we 
stated that we could not predict to what extent U.S. firms would elect 
to send poultry to Mexico for processing, nor could we determine what 
effect this rule would have on the volume of poultry processed in U.S. 
processing facilities. The commenters did not provide any data. 
Therefore, we are unable to determine the effect of this rule on small 
or large poultry processors in the United States.
    This rule may benefit U.S. truckers and haulers, wholesale traders, 
and poultry producers and packers, who stand to benefit from increased 
Mexican trade. However, as stated above, because we are unable to 
predict the volume of processed poultry meat or other poultry products 
that would be imported into the United States under this rule, we 
cannot determine the effect of this rule on the U.S. entities listed 
above, whether small or large.

Trade Relations

    This rule removes some restrictions on the importation of poultry 
carcasses and parts or products of poultry carcasses from regions where 
END is considered to exist. Consequently, the rule could encourage a 
positive trading environment between the United States and Mexico and 
other regions where END is considered to exist by stimulating economic 
activity and providing export opportunities to foreign poultry 
processing industries.

Alternatives Considered

    In developing this rule, we considered: (1) Making no changes to 
the regulations governing the importation of poultry from regions where 
END is considered to exist; (2) allowing the importation of poultry 
carcasses and parts or products of poultry carcasses that originated in 
a region free of END but that were processed in a region where END is 
considered to exist under conditions different from those proposed; or 
(3) allowing the importation of poultry carcasses and parts or products 
of poultry carcasses that originated in a region free of END but that 
were processed in a region where END is considered to exist under the 
conditions in this document.
    We rejected the first alternative because we believe this rule 
provides a way to remove trade restrictions while maintaining adequate 
safeguards against the introduction of END into the United States. 
Under these circumstances,

[[Page 38550]]

making no changes to the regulations would be contrary to trade 
agreements entered into by the United States.
    We also rejected the second alternative because we believe that 
conditions less stringent than those proposed would increase the risk 
of the introduction of END into the United States to more than a 
negligible level and that more stringent conditions would be 
unnecessarily restrictive. We consider the conditions in this rule to 
be both effective and necessary in keeping at a negligible level the 
risk of imported poultry products introducing END into the United 
States.

Executive Order 12988

    This final 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.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0141.

List of Subjects in 9 CFR Part 94

    Animal diseases, Imports, Livestock, Meat and meat products, Milk, 
Poultry and poultry products, Reporting and recordkeeping requirements.

    Accordingly, we are amending 9 CFR part 94 as follows:

PART 94--RINDERPEST, FOOT-AND-MOUTH DISEASE, FOWL PEST (FOWL 
PLAGUE), EXOTIC NEWCASTLE DISEASE, AFRICAN SWINE FEVER, HOG 
CHOLERA, AND BOVINE SPONGIFORM ENCEPHALOPATHY: PROHIBITED AND 
RESTRICTED IMPORTATIONS

    1. The authority citation for part 94 continues to read as follows:

    Authority: 7 U.S.C. 147a, 150ee, 161, 162, and 450; 19 U.S.C. 
1306; 21 U.S.C. 111, 114a, 134a, 134b, 134c, 136, and 136a; 31 
U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 2.22, 2.80, and 
371.2(d).


Sec. 94.18  Amended]

    2. In Sec. 94.18, footnotes 15 and 16 and their references are 
redesignated as footnotes 17 and 18, respectively.


Sec. 94.17  [Amended]

    3. In Sec. 94.17, footnote 2 is redesignated as footnote 16 and is 
revised to read: ``See footnote 15 in Sec. 94.17(e) of this part.''


Secs. 94.6, 94.8, 94.9, 94.12, 94.16, and 94.17  [Amended]

    4. In Secs. 94.6, 94.8, 94.9, 94.12, 94.16, and 94.17, footnotes 5 
through 14 and their references are redesignated as footnotes 6 through 
15, respectively.
    5. In Sec. 94.12 the newly redesignated footnote 13 is revised to 
read: ``See footnote 10 in Sec. 94.9 of this part.''
    6. In Sec. 94.6, the section heading is revised, paragraph (c)(5) 
is redesignated as paragraph (c)(6), and a new paragraph (c)(5) is 
added to read as follows:


Sec. 94.6  Carcasses, parts or products of carcasses, and eggs (other 
than hatching eggs) of poultry, game birds, or other birds; 
importations from regions where exotic Newcastle disease (END) or S. 
enteritidis is considered to exist.

* * * * *
    (c) * * *
    (5) Poultry carcasses or parts or products of poultry carcasses 
that originated in a region considered to be free of END and are 
processed (cut, packaged, and/or cooked) in a region where END is 
considered to exist may be imported under the following conditions:
    (i) Shipment to approved establishments. (A) The poultry carcasses 
or parts or products of poultry carcasses must be shipped from the END-
free region where they originated in closed containers sealed with 
serially numbered seals applied by an official of the national 
government of that region. They must be accompanied by a certificate 
that is signed by an official of that region's national government and 
that specifies the products' region of origin, the processing 
establishment to which the poultry carcasses or parts or products of 
poultry carcasses are consigned, and the numbers of the seals applied 
to the shipping containers.
    (B) the poultry carcasses or parts or products of poultry carcasses 
may be removed from containers at the processing establishment in the 
region where END is considered to exist only after an official of that 
region's national government has determined that the seals are intact 
and free of any evidence of tampering. The official must attest to this 
fact by signing the certificate accompanying the shipment.
    (ii) Handling of poultry carcasses or parts or products of poultry 
carcasses. Establishments \5\ in regions where END is considered to 
exist that process poultry carcasses or parts or products of poultry 
carcasses for export to the United States:
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    \5\ As a condition of entry into the United States, poultry or 
poultry products must also meet all of the requirements of the 
Poultry Products Inspection Act (21 U.S.C. 451 et seq.) and 
regulations thereunder (9 CFR part 381), including requirements that 
the poultry or poultry products be prepared only in approved 
establishments.
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    (A) May not receive or handle any live poultry.
    (B) Must keep any records required by this section on file at the 
facility for a period of at least 2 years after export of processed 
products to the United States, and must make those records available to 
USDA inspectors during inspections.
    (C) May process poultry carcasses or parts or products of poultry 
carcasses that originate in both END-free regions and regions where END 
is considered to exist, provided that:
    (1) All areas, utensils, and equipment likely to contact the 
poultry carcasses or parts or products of poultry carcasses to be 
processed, including skimming, deboning, cutting, and packing areas, 
are cleaned and disinfected between processing poultry from regions 
where END is considered to exist and poultry carcasses or parts or 
products of poultry carcasses from END-free regions.
    (2) Poultry carcasses or parts or products of poultry carcasses 
intended for export to the United States are not handled, cut, or 
otherwise processed at the same time as any poultry not eligible for 
export to the United States.
    (3) Poultry carcasses or parts or products of poultry carcasses 
intended for export to the United States are packed in clean new 
packaging that is clearly distinguishable from that containing any 
poultry not eligible for export to the United States.
    (4) Poultry carcasses or parts or products of poultry carcasses are 
stored in a manner that ensures that no cross-contamination occurs.
    (iii) Cooperative service agreement. Operators of processing 
establishments must enter into a cooperative service agreement with 
APHIS to pay all expenses incurred by APHIS in inspecting the 
establishment. APHIS anticipates that such inspections will occur once 
a year. The cooperative service account must always contain a balance 
that is at least equal to the cost of one inspection. APHIS will charge 
the cooperative service account for travel, salary, and subsistence of 
APHIS employees, as well as administrative overhead and other 
incidental expenses (including excess baggage charges up to 150 
pounds).
    (iv) Shipment to the United States. Poultry carcasses and parts or 
products

[[Page 38551]]

of poultry carcasses to be imported into the United States must be 
shipped from the region where they were processed in closed containers 
sealed with serially numbered seals applied by an official of the 
national government of that region. The shipments must be accompanied 
by a certificate signed by an official of the national government of 
the region where the poultry was processed that lists the numbers of 
the seals applied and states that all of the conditions of this section 
have been met. A copy of this certificate must be kept on file at the 
processing establishment for at least 2 years.
* * * * *
    Done in Washington, DC, this 13th day of July, 1999.
Charles P. Schwalbe,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-18320 Filed 7-16-99; 8:45 am]
BILLING CODE 3410-34-M