[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Rules and Regulations]
[Pages 60099-60102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24223]



[[Page 60099]]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 77

[Docket No. APHIS-2008-0117]


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.

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SUMMARY: We are amending the regulations to recognize Minnesota for 
split-State status for tuberculosis. The entire State of Minnesota has 
been classified as modified accredited; however, all its affected herds 
are located in portions of four counties in the northwest corner of the 
State. We have determined that Minnesota meets our requirements for 
zone classification. Therefore, we are removing Minnesota from the list 
of modified accredited States, adding an area in the northwest corner 
to the list of modified accredited zones, and adding the remainder of 
the State to the list of modified accredited advanced zones. This 
action relieves restrictions on the interstate movement of cattle and 
bison from areas of Minnesota other than the modified accredited zone 
in the northwest corner.

DATES: This interim rule is effective October 10, 2008. We will 
consider all comments that we receive on or before December 9, 2008.
    Compliance Date: The date for complying with the identification 
requirements for sexually intact heifers moving from the modified 
accredited advanced zone in Minnesota to approved feedlots and for 
steers and spayed heifers moving from the modified accredited advanced 
zone in Minnesota to any destination (9 CFR 77.10(b)), and for 
complying with the identification and certification requirements for 
sexually intact heifers moving from the modified accredited advanced 
zone in Minnesota to unapproved feedlots (9 CFR 77.10(d)), is delayed 
until further notice. The compliance date for all other provisions in 9 
CFR part 77 applicable to the interstate movement of cattle and bison 
from the State of Minnesota is October 10, 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-2008-0117 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-2008-0117, 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-2008-0117.
    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, National Tuberculosis Eradication Program, Veterinary 
Services, APHIS, 2150 Centre Ave., Bldg. B, MSC 3E20, Ft. Collins, CO 
80526; (970) 494-7378.

SUPPLEMENTARY INFORMATION:

Background

    Bovine tuberculosis is a contagious and infectious granulomatous 
disease caused by the bacterium Mycobacterium bovis. Although commonly 
defined as a chronic debilitating disease, bovine tuberculosis can 
occasionally assume an acute, rapidly progressive course. While any 
body tissue can be affected, lesions are most frequently observed in 
the lymph nodes, lungs, intestines, liver, spleen, pleura, and 
peritoneum. Although cattle are considered to be the true hosts of M. 
bovis, the disease has been reported in several other species of both 
domestic and nondomestic animals, as well as in humans.
    At the beginning of the past century, tuberculosis caused more 
losses of livestock than all other livestock diseases combined. This 
prompted the establishment in the United States of the National 
Cooperative State/Federal Bovine Tuberculosis Eradication Program for 
tuberculosis in livestock.
    In carrying out the national eradication program, the Animal and 
Plant Health Inspection Service (APHIS) issues and enforces 
regulations. The regulations require the testing of cattle and bison 
for tuberculosis, define the Federal tuberculosis status levels for 
States or zones (accredited-free, modified accredited advanced, 
modified accredited, accreditation preparatory, and nonaccredited), 
provide the criteria for attaining and maintaining those status levels, 
and contain testing and movement requirements for cattle and bison 
leaving States or zones of a particular status level. These regulations 
are contained in 9 CFR part 77 and in the Bovine Tuberculosis 
Eradication Uniform Methods and Rules, 1999, which is incorporated by 
reference into the regulations.

Conditions for Zone Classification

    Under Sec. Sec.  77.3 and 77.4 of the regulations, in order to 
qualify for zone classification by APHIS, a State must meet the 
following requirements:
    1. The State must have adopted and must be enforcing regulations 
that impose restrictions on the intrastate movement of cattle, bison, 
and captive cervids that are substantially the same as those in place 
in part 77 for the interstate movement of those animals.
    2. The designation of part of a State as a zone must otherwise be 
adequate to prevent the interstate spread of tuberculosis.
    3. The zones must be delineated by the animal health authorities in 
the State making the request for zone classification and must be 
approved by the APHIS Administrator.
    4. The request for zone classification must demonstrate that the 
State has the legal and financial resources to implement and enforce a 
tuberculosis eradication program and has in place the infrastructure, 
laws, and regulations to require and ensure that State and Federal 
animal health authorities are notified of tuberculosis cases in 
domestic livestock or outbreaks in wildlife.
    5. The request for zone classification must demonstrate that the 
State maintains, in each intended zone, clinical and epidemiological 
surveillance of animal species at risk of tuberculosis, at a rate that 
allows detection of tuberculosis in the overall population of livestock 
at a 2 percent prevalence rate with 95 percent confidence. The 
designated tuberculosis epidemiologist must review reports of all 
testing for each zone within the State within 30 days of the testing.
    6. The State must enter into a memorandum of understanding with 
APHIS in which the State agrees to adhere to any conditions for zone 
recognition particular to that request.

[[Page 60100]]

Request for Zone Classification in Minnesota

    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.
    The regulations define a modified accredited State or zone as a 
State or zone in which tuberculosis has been prevalent in less than 0.1 
percent of the total number of herds of cattle and bison in the State 
or zone for the most recent year. That definition does provide, 
however, that a State or zone with fewer than 10,000 herds may have up 
to 10 affected herds for the most recent year, depending on the 
veterinary infrastructure, livestock demographics, and tuberculosis 
control and eradication measures in the State or zone.
    In an interim rule effective and published in the Federal Register 
on April 9, 2008 (73 FR 19139-19142, Docket No. APHIS-2008-0037), we 
amended the tuberculosis regulations by removing Minnesota from the 
list of modified accredited advanced States and adding it to the list 
of modified accredited States. This action was taken after four 
affected herds were found in Minnesota within a 5-month period. All of 
the affected herds were located in portions of four counties in the 
northwest corner of Minnesota. No tuberculosis-affected herds were 
found in the remainder of the State.
    We have received from the State of Minnesota a request for zone 
classification for tuberculosis and have conducted a risk assessment to 
evaluate that request. Our risk assessment, entitled ``Assessment of 
Risk Associated with the Minnesota Proposed Plan for Split-State Status 
for Mycobacterium bovis (Bovine Tuberculosis),'' is available for 
public review and comment in conjunction with this interim rule.
    The risk assessment may be viewed on the Regulations.gov Web site 
or in our reading room (see ADDRESSES above for a link to 
Regulations.gov and information on the location and hours of the 
reading room). You may request paper copies of the risk assessment by 
calling or writing to the person listed under FOR FURTHER INFORMATION 
CONTACT. Please refer to the title of the risk assessment when 
requesting copies.
    Based on the risk assessment, we have concluded that Minnesota 
meets the requirements listed above for zone classification and that, 
except for the area in the northwest corner of the State where the 
affected herds were found, Minnesota now meets the criteria for 
modified accredited advanced tuberculosis status. Therefore, we are 
classifying two zones in Minnesota as follows:
     The modified accredited zone, which is the smaller of the 
two, consists of portions of the Minnesota Counties of Lake of the 
Woods, Roseau, Marshall, and Beltrami. A complete description of the 
boundaries of this zone is contained in the rule text at the end of 
this document.
     The modified accredited advanced zone consists of the rest 
of the State of Minnesota.

Immediate Action

    Immediate action is warranted to relieve restrictions on the 
interstate movement of cattle and bison from the newly classified 
modified accredited advanced zone in Minnesota. 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 action 
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 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.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities.
    This interim rule removes Minnesota from the list of modified 
accredited States, adds an area in the northwest corner to the list of 
modified accredited zones, and adds the remainder of the State to the 
list of modified accredited advanced zones. This action relieves 
restrictions on the interstate movement of cattle and bison from areas 
of Minnesota other than the modified accredited zone in the northwest 
corner.
    Entities that will be directly affected by this interim rule are 
Minnesota beef and dairy farms that engage in interstate movement of 
certain types of cattle. Operations in the modified accredited advanced 
zone will benefit from reduced costs associated with tuberculosis 
testing.
    The cattle industry plays an important role in Minnesota's economy. 
There were 25,000 cattle and calf operations in Minnesota in 2006 with 
a total inventory of 2.4 million head. About 24,700 of these cattle 
operations, accounting for more than 99 percent of the State's cattle, 
are located in the modified accredited advanced zone.\1\ State-wide 
cash receipts from cattle and calves and dairy products totaled $926 
million and $1.074 billion, respectively, in 2006. Seven-year average 
(2000-2006) cash receipts for cattle and calves and dairy products were 
$944 million and $1.2 billion, respectively.\2\
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    \1\ 2007 Minnesota Agricultural Statistics, U.S. Department of 
Agriculture (USDA)/National Agricultural Statistics Service (NASS), 
Minnesota Department of Agriculture.
    \2\ USDA/Economic Research Service Farm Income: Annual Cash 
Receipts, 1924-2006; Table 5--Cash Receipts, by commodity groups and 
selected commodities, Minnesota, 2000-2006.
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    The Regulatory Flexibility Act requires that agencies specifically 
consider the economic impact of their rules on small entities. The 
Small Business Administration (SBA) has established guidelines for 
determining which businesses are considered small. According to SBA 
size standards for beef cattle ranching and farming (North American 
Industry Classification System (NAICS) 112111) and for dairy cattle and 
milk production (NAICS 112120), operations with not more than $750,000 
in annual sales are considered small entities. In 2002, more than 95 
percent of cattle and calf farms generated less than $500,000 in cash 
receipts, and about 1.4 percent generated $1 million or more. More than 
93 percent of dairy farms generated less than $500,000 in cash 
receipts, and about 2 percent generated $1 million or more.\3\ Clearly, 
the majority of Minnesota's cattle operations are small entities. The 
composition of Minnesota's cattle inventory is shown in table 1.
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    \3\ 2002 Census of Agriculture. NASS, USDA.

[[Page 60101]]



          Table 1--Minnesota Cattle Inventory, January 1, 2006
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                                                          Percentage of
                Type                       Number             total
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Beef cows...........................           390,000              16.6
Milk cows...........................           445,000              18.9
Heifers
    Beef cow replacements...........            95,000               4.0
    Milk cow replacements...........           265,000              11.3
    Other heifers...................           170,000               7.2
                                     -----------------------------------
        Total heifers...............           530,000              22.6
                                     -----------------------------------
Steers..............................           450,000              19.2
Bulls...............................            35,000               1.5
Calves..............................           500,000              21.3
                                     -----------------------------------
        Total.......................         2,350,000  ................
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Source: NASS, USDA.

    Minnesota is currently listed as a modified accredited State. This 
rule reclassifies nearly all of the State as modified accredited 
advanced. The reclassification of a zone to modified accredited 
advanced status from modified accredited status removes certain 
restrictions on the interstate movement of feeding and breeding cattle. 
The modified accredited zone restrictions include a negative 
tuberculosis test within 60 days of the interstate movement of steers 
and spayed heifers that are being moved not directly to slaughter, but 
rather for feeding purposes. The modified accredited zone restrictions 
also include a negative whole herd test within 1 year of the interstate 
movement of sexually intact cattle from a herd without accredited 
status, that is, animals being moved for breeding purposes from 
nonaccredited herds. In addition, dairy herds in a modified accredited 
advanced zone are not required to have an annual whole herd test in 
order to comply with the Pasteurized Milk Ordinance (PMO),\4\ whereas a 
whole herd test is required of dairy herds in a modified accredited 
zone.
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    \4\ U.S. Food and Drug Administration, Center for Food Safety 
and Applied Nutrition.
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    A negative tuberculosis test within 60 days of interstate movement 
of feeding cattle will no longer be needed for herds in the modified 
accredited advanced zone. Tuberculosis testing, including veterinary 
fees, costs about $10 to $15 per head.\5\ The Minnesota Board of Animal 
Health tracks the number of feeding animals moved interstate from 
Minnesota, as documented on export certificates. In 2007, more than 
150,000 head of feeding cattle were moved out of Minnesota. Because the 
reclassified zone includes about 99 percent of all cattle in the State, 
the vast majority of the feeding animals moving out of Minnesota will 
likely move from the zone reclassified to modified accredited advanced 
status by this rule and will no longer require a negative tuberculosis 
test within 60 days of movement. Based on the above range in testing 
costs per animal, we expect annual cost savings associated with reduced 
testing of feeder cattle moving out of the State to total between $1.5 
million and $2.25 million. The more a herd owner in the modified 
accredited advanced zone engages in the interstate movement of feeding 
cattle, the greater will be the savings associated with the reduction 
in movement restrictions.
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    \5\ USDA/APHIS/Veterinary Services, personal communication.
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    Owners of nonaccredited herds in the modified accredited advanced 
zone engaged in interstate movement of breeding cattle also will 
benefit from reduced costs associated with tuberculosis testing. A 
negative whole herd test within 1 year of the interstate movement of 
intact cattle from a herd without accredited status will no longer be 
needed for herds in the modified accredited advanced zone. In addition, 
the annual whole herd test for dairies required under the PMO for herds 
in a modified accredited zone is not required for herds in a modified 
accredited advanced zone.
    A whole herd test requires the testing of all animals in a herd 
that are 12 months of age or older at the time of the test. In January 
2006, there were 870,000 beef and milk cows that had calved and bulls 
on 25,000 farms in Minnesota. If we assume that these categories of 
cattle comprise all of the whole herd test animals, then there were, on 
average, 35 cattle per herd tested under the modified accredited 
requirements. Annual whole herd testing costs averaged between $350 and 
$525 per herd, based on tuberculosis testing costs of $10 to $15 per 
head. These cost estimates per herd 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.
    The State of Minnesota has estimated that there are 5,381 
commercial dairies operating in the modified accredited advanced zone. 
These dairies will no longer be required to perform an annual whole 
herd test under the PMO.
    Beef or mixed herd enterprises in the modified accredited advanced 
zone that engage in the interstate movement of intact cattle will not 
be required to have a whole herd test performed in the 1 year prior to 
that movement. The Minnesota Board of Animal Health tracks the number 
of breeding animals moved interstate from Minnesota, as documented on 
export certificates. In 2007, about 61,000 breeding animals moved out 
of Minnesota. There are fewer than 30 accredited herds in Minnesota. 
Therefore, most breeding animals moving out of Minnesota are from 
nonaccredited herds that under modified accredited status require a 
whole herd test.
    All cattle enterprises in the modified accredited advanced zone 
that move breeding animals out of Minnesota or that operate as dairies 
will no longer need to perform a whole herd test on an annual basis. 
Based on the above estimate of the average cost of a whole herd test, 
and assuming that all Minnesota herds in the modified accredited 
advanced zone will be affected, the annual cost savings associated with 
the removal of the whole herd testing requirement could total between 
$8.65 million (24,700 herds, multiplied by $350 per herd) and $12.97 
million (24,700 herds, multiplied by $525 per herd).
    The overwhelming majority of cattle herds in the State will see a 
reduction

[[Page 60102]]

in pre-movement tuberculosis testing requirements as a result of this 
interim rule, and will therefore benefit from reduced costs associated 
with that tuberculosis testing. However, tuberculosis testing costs are 
very small when compared to value of the cattle tested, and the 
expected savings, therefore, are also relatively small. On January 1, 
2007, beef cattle in Minnesota had an average per animal value of 
$960.\6\ The average value of dairy cattle is considerably higher, 
given the value of milk produced. The savings in tuberculosis testing 
costs represent no more than about 1.6 percent of the average per-head 
value of beef cattle ($15/$960) and an even smaller percentage of the 
average value of dairy cattle.
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    \6\ Meat Animals Production, Distribution and Income 2007 
Summary. April 2008. Agricultural Statistics Board. NASS, USDA.
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    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.

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.


0
2. In Sec.  77.9, paragraph (b) is revised to read as follows:


Sec.  77.9  Modified accredited advanced States or zones.

* * * * *
    (b) The following are modified accredited advanced zones: All of 
the State of Michigan except for the zones that comprise those counties 
or portions of counties in Michigan described in Sec.  77.7(b)(1) and 
Sec.  77.11(b)(1); and all of the State of Minnesota except for the 
zones that comprise those counties or portions of counties in Minnesota 
described in Sec.  77.11(b)(2).
* * * * *

0
3. In Sec.  77.11, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  77.11  Modified accredited States or zones.

    (a) The following are modified accredited States: None.
    (b) The following are modified accredited zones:
    (1) A zone in Michigan that comprises Alcona, Alpena, Antrim, 
Charlevoix, Cheboygan, Crawford, Emmet, Montmorency, Oscoda, Otsego, 
and Presque Isle Counties and those portions of Iosco and Ogemaw 
Counties that are north of the southernmost boundary of the Huron 
National Forest and the Au Sable State Forest.
    (2) Those portions of the Minnesota Counties of Lake of the Woods, 
Roseau, Marshall, and Beltrami bounded by a line as follows: Beginning 
in Lake of the Woods County at the intersection of the U.S./Canadian 
border and the western shoreline of Lake of the Woods; then west along 
the U.S./Canadian border (crossing into Roseau County) to Roseau County 
Road 115; then south along Roseau County Road 115 to State Highway 11; 
then southwest along State Highway 11 to State Highway 32; then south 
along State Highway 32 (crossing into Marshall County) to Marshall 
County Road 47/124; then east along Marshall County Road 47/124 to 
210th Avenue Northeast; then south along 210th Avenue Northeast and 
southwest to where the name changes to 200th Avenue Northeast; then 
south along 200th Avenue Northeast to County Road 121; then south along 
the western boundary of Agassiz National Wildlife Reserve and along the 
western boundary of the Elm Lake State Wildlife Management Area to the 
southwest corner of sec. 21 in T. 155 N., R. 42 W. of the Fifth Prime 
Meridian; then east along the southern boundary of secs. 21, 22, 23, 
and 24 in T. 155 N., R. 42 W. and secs. 19 and 20 in T. 155 N., R. 41 
W.; then south along the western boundary of secs. 28 and 33 in T. 155 
N., R. 41 W.; then continuing south along Marshall County Road 52 to 
the southern boundary of Marshall County; then east along the southern 
boundary of Marshall County to the western boundary of Beltrami County 
(also the boundary of the Red Lake Indian Reservation); then north 
along the Beltrami County boundary (also the boundary of the Red Lake 
Indian Reservation) to the northern boundary of the Red Lake Indian 
Reservation; then east along the northern boundary of the Red Lake 
Indian Reservation to the southeast corner of sec. 36 in T. 155 N., R. 
34 W.; then north along the eastern boundary of Townships 155, 156, 157 
(crossing into Lake of the Woods County), 158, 159, 160, and 161 N., R. 
34 W., to State Highway 11; then northwest and north along State 
Highway 11 to County Road 74; then east along County Road 74 to Main 
Avenue Northeast; then north along Main Avenue Northeast to the 
northern city limits of Warroad; then east along the Warroad city 
limits to the shore of Lake of the Woods; then along the shore of Lake 
of the Woods to the point of beginning.
* * * * *

    Done in Washington, DC, this 7th day of October 2008.
Cindy Smith,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E8-24223 Filed 10-9-08; 8:45 am]
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