[Federal Register Volume 73, Number 69 (Wednesday, April 9, 2008)]
[Rules and Regulations]
[Pages 19139-19142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7346]



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  Federal Register / Vol. 73, No. 69 / Wednesday, April 9, 2008 / Rules 
and Regulations  

[[Page 19139]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 77

[Docket No. APHIS-2008-0037]


Tuberculosis in Cattle and Bison; State and Zone Designations; 
Minnesota

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

-----------------------------------------------------------------------

SUMMARY: We are amending the bovine tuberculosis regulations regarding 
State and zone classifications by removing Minnesota from the list of 
modified accredited advanced States and adding it to the list of 
modified accredited States. This action is necessary to help prevent 
the spread of tuberculosis because Minnesota no longer meets the 
requirements for modified accredited advanced State status.

DATES: This interim rule is effective April 9, 2008. We will consider 
all comments that we receive on or before June 9, 2008.

ADDRESSES: You may submit comments by either of the following methods:
    Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0037 to submit 
or view comments and to view supporting and related materials available 
electronically.
    Postal Mail/Commercial Delivery: Please send two copies of your 
comment to Docket No. APHIS-2008-0037, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2008-0037.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Dr. C. William Hench, Senior Staff 
Veterinarian, Ruminant Health Programs, National Center for Animal 
Health Programs, VS, APHIS, 2150 Centre Avenue, Building B, MSC 3-E-20, 
Fort Collins, CO 80526-8117; (970) 494-7378.

SUPPLEMENTARY INFORMATION: 

Background

    Bovine tuberculosis is a contagious and infectious granulomatous 
disease caused by Mycobacterium bovis. It affects cattle, bison, deer, 
elk, goats, and other warm-blooded species, including humans. 
Tuberculosis in infected animals and humans manifests itself in lesions 
of the lung, lymph nodes, bone, and other body parts, causes weight 
loss and general debilitation, and can be fatal. At the beginning of 
the past century, tuberculosis caused more losses of livestock than all 
other livestock diseases combined. This prompted the establishment of 
the National Cooperative State/Federal Bovine Tuberculosis Eradication 
Program for tuberculosis in livestock. Through this program, the Animal 
and Plant Health Inspection Service (APHIS) works cooperatively with 
the national livestock industry and State animal health agencies to 
eradicate tuberculosis from domestic livestock in the United States and 
prevent its recurrence.
    Federal regulations implementing this program are contained in 9 
CFR part 77, ``Tuberculosis'' (referred to below as the regulations), 
and in the ``Uniform Methods and Rules--Bovine Tuberculosis 
Eradication'' (UMR), which is incorporated by reference into the 
regulations. The regulations restrict the interstate movement of 
cattle, bison, and captive cervids to prevent the spread of 
tuberculosis. Subpart B of the regulations contains requirements for 
the interstate movement of cattle and bison not known to be infected 
with or exposed to tuberculosis. The interstate movement requirements 
depend upon whether the animals are moved from an accredited-free State 
or zone, modified accredited advanced State or zone, modified 
accredited State or zone, accreditation preparatory State or zone, or 
nonaccredited State or zone.
    The status of a State or zone 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 for cattle and bison contained in the 
UMR. Prior to this interim rule, Minnesota was designated as a modified 
accredited advanced State.
    The regulations in Sec.  77.5 define a modified accredited advanced 
State or zone as a State or zone in which tuberculosis has been 
prevalent in less than 0.01 percent of the total number of herds of 
cattle and bison in the State or zone for each of the most recent 2 
years. That definition does provide, however, that a State or zone with 
fewer than 30,000 herds may have up to 3 affected herds for each of the 
most recent 2 years, depending on the veterinary infrastructure, 
livestock demographics, and tuberculosis control and eradication 
measures in the State or zone. As a State with approximately 21,300 
herds, according to data for 2007 obtained from the National 
Agricultural Statistics Service, Minnesota had been able to retain its 
modified accredited advanced status despite the detection of 3 
tuberculosis-affected herds since October 2007. However, the recent 
detection of a fourth tuberculosis-affected herd means that Minnesota 
no longer qualifies for modified accredited advanced status. Therefore, 
we are amending the regulations by removing Minnesota from the list of 
modified accredited advanced States or zones and adding it to the list 
of modified accredited States or zones in Sec.  77.11.
    The four affected herds detected in the State have been 
quarantined, and a complete epidemiological investigation into the 
potential sources of the disease is being conducted.
    Under the regulations in Sec.  77.12, cattle or bison that 
originate in a modified accredited State or zone, and are not known to 
be infected with or exposed to tuberculosis, may be moved

[[Page 19140]]

interstate only under one of the following conditions:
    The cattle or bison are moved directly to slaughter at an approved 
slaughtering establishment (Sec.  77.12(a));
    The cattle or bison are sexually intact heifers moved to an 
approved feedlot, or are steers or spayed heifers; and are either 
officially identified or identified by premises of origin 
identification; and are accompanied by a certificate stating that they 
were classified negative to an official tuberculin test conducted 
within 60 days prior to the date of movement (Sec.  77.12(b));
    The cattle or bison are from an accredited herd and are accompanied 
by a certificate stating that the accredited herd completed the testing 
necessary for accredited status with negative results within 1 year 
prior to the date of movement (Sec.  77.12(c)); or
    The cattle or bison are sexually intact animals; are not from an 
accredited herd; are officially identified; and are accompanied by a 
certificate stating that the herd from which they originated was 
negative to a whole herd test conducted within 1 year prior to the date 
of movement and that the individual animals to be moved were negative 
to an additional official tuberculin test conducted within 60 days 
prior to the date of movement, except that the additional test is not 
required if the animals are moved interstate within 60 days following 
the whole herd test (Sec.  77.12(d)).
    Minnesota has indicated that it intends to pursue zone 
classification, or split-State status, under Sec. Sec.  77.3 and 77.4 
of the regulations, and APHIS is initiating a risk assessment to assist 
in our evaluation of such a request. That risk assessment will be made 
available as a supporting document for any future rulemaking we 
undertake to recognize a zone within Minnesota.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
spread of tuberculosis in the United States. Under these circumstances, 
the Administrator has determined that prior notice and opportunity for 
public comment are contrary to the public interest and that there is 
good cause under 5 U.S.C. 553 for making this rule effective less than 
30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This interim rule has been reviewed under Executive Order 12866. 
For this action, the Office of Management and Budget has waived its 
review under Executive Order 12866.
    The Regulatory Flexibility Act requires agencies to evaluate the 
potential economic effects of their regulatory actions on small 
businesses, small organizations and small governmental jurisdictions. 
This initial regulatory flexibility analysis examines expected impacts 
for small entities in Minnesota as a result of this interim rule that 
amends the State's bovine tuberculosis status from modified accredited 
advanced to modified accredited. We invite comments about this rule as 
it relates to small entities.

Reason for the Action

    Because of increased incidence of bovine tuberculosis, Minnesota no 
longer qualifies for modified accredited advanced status. It is 
necessary to reclassify the State as modified accredited and conduct 
the additional disease prevention measures required by that 
reclassification in order to mitigate the spread of bovine tuberculosis 
to other States.

Objectives and Legal Basis for the Rule

    The objective of the rule is to limit the spread of tuberculosis 
from Minnesota to other States. APHIS' authority to carry out 
operations and measures to detect, control, or eradicate bovine 
tuberculosis is the Animal Health Protection Act (7 U.S.C. 8301-8317).

A Description of and Estimate of the Number of Small Entities to Which 
the Rule Will Apply

    The cattle industry plays an important role in Minnesota's economy. 
There were 21,300 cattle and calf operations (herds) in Minnesota in 
2007, with a total inventory of 2.4 million head on January 1, 2008.\1\ 
Cash receipts from cattle and calves and dairy products totaled $925.5 
million and $1,073.7 million, respectively, in 2006, the latest year 
for which these data are available. Seven-year average receipts for 
cattle and calves and dairy products between 2000 and 2006 were $944 
million and $1,162 million, respectively, for an average total of $2.1 
billion.\2\
---------------------------------------------------------------------------

    \1\ USDA/NASS. http://usda.mannlib.cornell.edu/usda/current.Catt/Catt-02-01-2008.pdf.
    \2\ USDA/ERS, Farm Income: Annual Cash Receipts, 1924-2006: 
Table 5--Cash Receipts, by Commodity Groups and Selected 
Commodities, Minnesota, 2000-2006.
---------------------------------------------------------------------------

    The vast majority of cattle operations in Minnesota (99 percent, or 
over 21,000 enterprises) are small entities that have annual receipts 
of not more than $750,000. The composition of Minnesota's cattle 
inventory is shown in Table 1.

     Table 1.--Minnesota's Cattle Inventory by Type: January 1, 2008
------------------------------------------------------------------------
                                                           Percentage of
                  Type                        Number           total
------------------------------------------------------------------------
Beef cows...............................         397,000            16.5
Milk cows...............................         463,000            19.3
Heifers:
    Beef cow replacements...............         100,000             4.2
    Milk cow replacements...............         270,000            11.3
    Other heifers.......................         175,000             7.3
                                         -------------------------------
        Total heifers...................         545,000            22.7
                                         ===============================
Steers..................................         445,000            18.5
Bulls...................................          40,000             1.7
Calves..................................         510,000            21.3
                                         -------------------------------
    Total...............................       2,400,000           100.0
------------------------------------------------------------------------
Source: USDA/NASS. http://usda.mannlib.cornell.edu/usda/current.Catt/Catt-02-01-2008.pdf.


[[Page 19141]]

A Description of Compliance Requirements and Expected Effects of the 
Rule

    Minnesota's bovine tuberculosis status has been modified accredited 
advanced. This interim rule amends the State's status to modified 
accredited. As a result of this action, herd owners are expected to be 
negatively affected. The additional requirements for movement of cattle 
as a result of the change in tuberculosis status are shown in Table 2. 
As shown, no additional requirements are placed on animals moving 
directly to slaughter or those moving from an accredited herd. Intact 
heifers moved interstate to an approved feedlot and steers and spayed 
heifers moved interstate will require certification and testing within 
60 days of movement (60-day test). Also, intact animals (that is, beef 
and milk cows that have calved, beef and milk cow replacements and 
bulls) from a herd without accredited status will require a whole herd 
test within the previous 12 months and a negative 60-day test prior to 
interstate movement. If the intact animals are moved within 60 days of 
the whole herd test, they do not require an additional test. Thus, 
owners of non-accredited herds that move intact animals or steers and 
spayed heifers interstate will bear additional costs because of 
Minnesota's loss of modified accredited advanced status.

   Table 2.--A Comparison of Requirements for Interstate Movement From
 States or Zones Having Modified Accredited Advanced Status and Modified
                            Accredited Status
------------------------------------------------------------------------
 Type of cattle and movement   Modified accredited   Modified accredited
             \a\                 advanced status           status
------------------------------------------------------------------------
All types moved directly to   No test required....  No test required.
 slaughter at an approved
 slaughtering establishment.
Intact heifers moved to an    Official ID only....  Official ID,
 approved feedlot\b\.                                certificate of
                                                     negative 60-day
                                                     test.
Steers and spayed heifers\c\  Official ID only....  Official ID,
                                                     certificate of
                                                     negative 60-day
                                                     test.
Cattle from an accredited     Certificate that      Certificate that
 herd\d\.                      herd was tested       herd was tested
                               within 1 year of      within 1 year of
                               movement.             movement.
Intact cattle from a herd     Official ID,          Official ID,
 without accredited status.    certificate of        certificates of
                               negative 60-day       negative whole herd
                               test.                 test within
                                                     previous 12 months
                                                     and negative 60-day
                                                     test; 60-day test
                                                     not required if
                                                     moved within 60
                                                     days of the whole
                                                     herd test.
------------------------------------------------------------------------
Source: 9 CFR 77.10 and 77.12.
\a\ The movement requirements apply also to bison.
\b\ Currently, there are no approved feedlots (facilities that handle
  high risk animals) in the United States.
\c\ There are few, if any, spayed heifers in Minnesota.
\d\ There are no accredited herds in Minnesota.

    Tuberculosis testing, including veterinary fees, completion of 
certificate forms and handling expenses, costs about $10 to $15 per 
test. Based on the above information, all steers and intact heifers 
moved interstate but not directly to slaughter will need certification 
of a negative 60-day test, and the intact animals from herds without 
accredited status that move interstate will need a whole herd test and 
a 60-day test unless moved within the first 60 days following the whole 
herd test. In estimating what these testing costs may total for 
Minnesota's cattle producers, and the extent to which small entities 
may be affected, we have assumed that the change in bovine tuberculosis 
status will affect all Minnesota herds. We recognize that this 
assumption overstates the probable number of herds affected, since 
movement of cattle within Minnesota will not be impacted. However, we 
also note that there are other marketing costs attributable to the 
change in status that are not quantified in this analysis; namely, a 
price discount incurred by sellers of cattle that originate from a 
State or zone of lower status.
    According to National Agricultural Statistics Service (NASS) data, 
about 32 percent of Minnesota's cattle were moved directly to slaughter 
in 2007.\3\ We do not know the percentage of cattle moved directly to 
slaughter by class, but assume that the 32 percent is representative 
for steers. Thus, there will be 302,600 steers (445,000 head x 0.68) 
that will require certification of a negative 60-day test prior to 
interstate movement. Applying the above testing costs per animal yields 
a total annual cost for testing steers of between $3,026,000 (302,600 
head x $10 per head) and $4,539,000 (302,600 head x $15 per head).
---------------------------------------------------------------------------

    \3\ USDA/NASS, Livestock Slaughter, 2007 Summary, March 2008.
---------------------------------------------------------------------------

    Assuming that 32 percent of the ``Other Heifers'' shown in Table 1 
are moved directly to slaughter implies that 119,000 intact heifers 
(175,000 head x 0.68) from this category will require a negative 
individual 60-day test if these heifers are moved more than 60 days 
after their herd of origin has had a whole herd test. We also assume 
that 85 percent of the intact replacement heifers are moved interstate 
(with operators retaining 15 percent, on average). These heifers number 
314,500 (370,000 head x 0.85). Because intact heifers may be moved 
interstate within 60 days of the whole herd test of their herd of 
origin, there will be a 10-month period in which intact heifers will 
require the 60-day test. We estimate that 361,250 intact heifers 
([119,000 head + 314,500 head] x 10/12) will require the additional 60-
day test each year. Applying the estimated testing costs per animal of 
$10 to $15, the 60-day test will result in a total annual cost of 
between $3,612,500 and $5,418,750.
    As stated above, there are approximately 21,300 cattle and bison 
herds or operations in Minnesota with a total of 2.4 million animals or 
with an average number of 113 animals per herd. In order to be eligible 
for interstate movement, intact cattle or bison must originate from a 
herd that has had a whole herd test within 1 year prior to the date of 
interstate movement. Additionally, all dairies must have a whole herd 
test annually to comply with the Pasteurized Milk Ordinance (PMO) 
unless an approved surveillance plan is in place within the State. 
Assuming that all cattle operations will desire the ability to move 
their cattle or bison to any other State or zone, or be required to 
test to comply with PMO, every herd in the State will need to conduct a 
whole herd test on an annual basis.
    A whole herd test requires the testing of all animals in a herd 
that are 12 months of age and older at the time of

[[Page 19142]]

the test. Calculating a 90 percent yearly calf crop results in an adult 
population of 60 animals over 12 months of age in the average herd (113 
head) in any given year. Based on the 21,300 herds in Minnesota, this 
results in a total number of 1,278,000 intact cattle (21,300 herds x 60 
adult cattle per herd) that will require a whole herd test each year. 
Assuming, as above, the $10 to $15 cost per head, the total cost for 
whole herd testing is estimated to be between $12,780,000 and 
$19,170,000. These cost estimates may be high because the cost of whole 
herd testing on a per-animal basis is generally less than the cost of 
testing animals individually 60 days prior to interstate movement.
    By conducting the whole herd test within 60 days prior to 
interstate movement of the intact cattle, producers will not incur the 
cost of a 60-day test. They may, in fact, derive savings from the 
difference between the testing costs per animal when conducted 
individually and when conducted as part of a whole herd test.
    Combining the estimated testing costs for interstate movement of 
steers and intact heifers and for whole herd testing, we find that 
Minnesota's loss of modified accredited advanced status may cost its 
cattle producers between $19.4 million and $29.1 million annually due 
to the additional bovine tuberculosis testing that is required.
    Based on the 2002 Census of Agriculture, there were 22,830 small-
entity producers in Minnesota (99 percent of all cattle holdings) that 
sold a total of 1,068,393 head of cattle (78.8 percent of total sales). 
They had an average annual income of about $29,400 in 2002. The 
remaining one percent of producers had sales of 287,749 animals and an 
average annual income of about $1,540,890. As shown in Table 3, the 
impact of Minnesota's loss of modified accredited advanced status on 
its small-entity producers may average more than $1,000 per operation. 
This amount is equal to about 3.4 percent of average annual sales by 
small entities in 2002 when based on the upper range of bovine 
tuberculosis testing costs ($15 per animal tested).

 Table 3.--The Estimated Cost of Minnesota's Loss of Modified Accredited
                   Advanced Status for Small Entities
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total cost of testing \a\...............  $29.1 million.
The cost to small entities \b\..........  $22.9 million.
Average cost per small entity \c\.......  $1,003.
Average cost per small entity as a         3.4%.
 percentage of average sales per small
 entity \d\.
------------------------------------------------------------------------
\a\ From the text, assuming an individual bovine tuberculosis testing
  cost of $15 per head.
\b\ Total testing cost multiplied by 78.8 percent, the percentage of
  cattle and calves sold by producers with annual revenues of not more
  than $750,000, that is, small entities. We assume that the total cost
  of tuberculosis testing incurred by small entities is proportional to
  their share of the State's total cattle sales.
\c\ Total cost for small entities divided by the number of small
  entities (22,830 producers, based on 2002 Census of Agriculture data).
 
\d\ Average cost per small entity as a percentage of the average annual
  revenue per small entity ($29,400, based on 2002 Census of Agriculture
  data).

Duplication, Overlap, or Conflict With Other Rules

    APHIS has not identified any Federal rules that are duplicative, 
overlapping, or conflicting with this rule.

Description of Any Significant Alternatives to the Rule

    APHIS has determined that there are no significant alternatives to 
the interim rule that would accomplish the stated objectives and 
minimize impacts for small entities.

Summary

    This analysis examines impacts for Minnesota's small entities of 
that State's loss of modified accredited advanced status. The State's 
producers of cattle and calves are predominantly small entities. Those 
producers who move steers, intact heifers or intact adult cattle out-
of-state for breeding or feeding purposes will incur increased costs as 
a result of the change in bovine tuberculosis status. The additional 
testing costs may average as much as 3.4 percent of the value of annual 
sales by 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 interim rule contains no 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.

0
Accordingly, we are amending 9 CFR part 77 as follows:

PART 77--TUBERCULOSIS

0
1. The authority citation for part 77 continues to read as follows:

    Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.


Sec.  77.9  [Amended]

0
2. In Sec.  77.9, paragraph (a) is amended by removing the word 
``Minnesota'' and adding the word ``None'' in its place.


Sec.  77.11  [Amended]

0
3. In Sec.  77.11, paragraph (a) is amended by removing the word 
``None'' and adding the word ``Minnesota'' in its place.

    Done in Washington, DC, this 3rd day of April 2008.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E8-7346 Filed 4-8-08; 8:45 am]
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