[Federal Register Volume 74, Number 51 (Wednesday, March 18, 2009)]
[Rules and Regulations]
[Pages 11463-11466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5987]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 74, No. 51 / Wednesday, March 18, 2009 /
Rules and Regulations
[[Page 11463]]
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Part 309
[Docket No. FSIS-2008-0022]
RIN 0583-AD35
Requirements for the Disposition of Cattle that Become Non-
Ambulatory Disabled Following Ante-Mortem Inspection
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is amending the
Federal meat inspection regulations to require that all cattle that are
non-ambulatory disabled at an official establishment, including those
that become non-ambulatory disabled after passing ante-mortem
inspection, be condemned and disposed of properly. In addition, this
rule requires that establishments notify FSIS inspection personnel when
cattle become non-ambulatory disabled after passing ante-mortem
inspection. FSIS is taking this action to better ensure effective
implementation of inspection and humane handling requirements at
official establishments.
DATES: Effective Date: This regulation is effective April 17, 2009.
FOR FURTHER INFORMATION CONTACT: Dr. Daniel Engeljohn, Deputy Assistant
Administrator, Office of Policy and Program Development, FSIS, U.S.
Department of Agriculture, 1400 Independence Avenue, SW., Washington,
DC 20250-3700, (202) 205-0495.
SUPPLEMENTARY INFORMATION:
Background
On August 29, 2008, FSIS published a proposed rule to amend the
regulations in 9 CFR 309.3(e) to remove the provision that allows FSIS
inspection personnel to determine, on a case-by-case basis, the
disposition of cattle that become non-ambulatory disabled after they
have passed ante-mortem inspection (``Requirements for the Disposition
of Cattle That Become Non-Ambulatory Disabled Following Ante-Mortem
Inspection'' (73 FR 50889)). In that proposed rule, FSIS also proposed
to require that establishments notify FSIS inspection personnel when
cattle become non-ambulatory disabled after passing ante-mortem
inspection.
The Agency issued the proposed rule in response to a January 2008
investigation into events at the Hallmark/Westland Meat Packing Company
that highlighted a vulnerability in our inspection system and that
disclosed instances where cattle had been inhumanely handled. Based on
these findings, FSIS determined that the proposed amendments to 9 CFR
309.3 were necessary to ensure that animals that may be unfit for human
food do not proceed to slaughter, and to improve the effectiveness and
efficiency of our inspection program. The Agency concluded that the
revision proposed would reduce uncertainty in determining the proper
disposition of non-ambulatory disabled cattle and would eliminate the
time FSIS public health veterinarians (PHVs) spend determining whether
or not an animal can be tagged as ``U.S. Suspect'', proceed to
slaughter, and then re-inspected after slaughter, thereby increasing
the time inspection program personnel can focus on other inspection
activities (73 FR at 50890-50891). FSIS also concluded that the
proposal would improve humane handling practices and preclude
establishments from attempting to force non-ambulatory disabled cattle
to rise.
FSIS also proposed to clarify in 9 CFR 309.3(e) that establishments
are required to specifically notify FSIS inspection personnel when
cattle become non-ambulatory disabled after passing ante-mortem
inspection. The Agency proposed to make clear that establishments have
an affirmative obligation to make FSIS personnel aware when an animal
goes down.
This final rule adopts the proposed amendments to 9 CFR 309.3(e)
without changes. These amendments will ensure more effective and
efficient inspection procedures under the Federal Meat Inspection Act
(FMIA), 21 U.S.C. 603, and improved compliance with the humane handling
requirements established pursuant to 21 U.S.C. 603(b).
In the preamble to the proposed rule, FSIS stated that it would
expect custom operators not to slaughter cattle that become non-
ambulatory disabled after they are delivered to the custom operation
(73 FR at 50890-50891). Based on comments received and after further
consideration of the issue, FSIS has decided to continue to permit
custom operators to slaughter for human food cattle that become non-
ambulatory disabled after they are delivered to a custom operation if
the custom operator does not observe any other condition that would
render the animal unfit for human food.
Comments and Responses
FSIS received approximately 58,000 comments in response to the
proposed rule. Among the commenters were private citizens, animal
welfare advocacy organizations, meat and dairy trade associations,
consumer advocacy organizations, organizations that represent meat
processors, cattlemen and cattle feeders associations, a stockgrowers
association, a state department of agriculture, a veterinary medical
association, a physician's committee, and a national restaurant chain.
The majority of comments were form letters submitted by private
citizens and animal welfare organizations concerned about the humane
treatment of animals.
Comment: The majority of private citizen, animal welfare advocacy
organization, and consumer advocacy organization comments supported the
adoption of the proposed rule requiring the condemnation of all non-
ambulatory disabled cattle, including those that become non-ambulatory
disabled after passing ante-mortem inspection. The commenters asserted
that the rule is necessary to improve food safety and to ensure the
humane handling of non-ambulatory disabled cattle at slaughter.
The commenters asserted that the current regulatory provision for a
case-by-case determination concerning the disposition of certain non-
ambulatory disabled cattle created the unintended effect of encouraging
establishments to present weakened cattle for ante-
[[Page 11464]]
mortem inspection. The commenters argued that this unintended
circumstance encourages the abusive treatment of cattle.
Response: FSIS agrees with the commenters that this rule will
foster more efficient and effective ante-mortem inspection procedures
and better ensure compliance with humane handling requirements. FSIS
also agrees with commenters that the rule is necessary to preclude
establishments from attempting to force non-ambulatory disabled animals
to rise for FSIS re-inspection. The Agency also believes that it is
important to clarify whether establishments must specifically notify
FSIS when cattle become non-ambulatory disabled after passing ante-
mortem inspection to ensure that animals not eligible for slaughter do
not enter the slaughter operation, and that they are properly and
humanely handled and disposed of in accordance with regulatory
requirements.
Comment: Several meat processor and cattlemen associations
requested that the Agency reevaluate the decision regarding the custom
slaughter exemption for personal use.
Response: After carefully considering this issue, the Agency has
decided to continue to allow custom operators to slaughter for human
food cattle that become non-ambulatory disabled after they are
delivered to a custom slaughter facility if the operator does not
observe any other condition that would render the animal unfit for
human food. Cattle slaughtered under a custom exemption and the
associated beef products are not sold in commerce to the public. Custom
exempt product is required to be delivered to the owner of the
livestock and only for the owner's personal use.
In addition, based upon the 2007 FSIS survey data discussed below,
the Agency estimates that the number of animals that would become non-
ambulatory disabled after arriving at a custom operation is so small as
to be de minimis.
Comment: Most of the private citizen, animal welfare advocacy
organization, and consumer advocacy organization comments that
supported the proposed prohibition on the slaughter of all non-
ambulatory disabled cattle requested that the Agency extend the ban to
cover all livestock.
Response: The proposed rule addressed ante-mortem inspection and
humane handling issues related to non-ambulatory disabled cattle, not
other livestock. This issue is outside the scope of this rulemaking.
However, as the Agency has noted in a prior rulemaking (72 FR 38722),
it plans to evaluate measures that may be necessary to ensure the
humane handling of livestock.
Comment: Most of the private citizen, animal welfare advocacy
organization, and consumer advocacy organization comments that
supported the ban on the slaughter of non-ambulatory disabled cattle
requested that the Agency extend this prohibition to auction markets,
stockyards, and transport vehicles.
Response: FSIS is making no changes based upon these comments. The
Agency has jurisdiction only at official establishments. FSIS has no
authority over the handling of cattle at auction markets, stockyards,
or in transport vehicles before they reach official establishments.
Comment: Several of the private citizen, animal welfare advocacy
organization, and consumer advocacy organization comments recommended
that non-ambulatory disabled cattle be immediately euthanized. Several
animal welfare advocacy organizations comments also recommended that
FSIS take additional actions to ensure humane handling of livestock,
including assigning more inspectors to enforce humane handling
procedures, requiring video surveillance, and conducting undercover
investigations.
Response: The Humane Methods of Slaughter Act of 1978 (HMSA)
(Section 1901, 1902, and 1906) requires that livestock, including non-
ambulatory disabled cattle, be humanely handled in connection with
slaughter. Because the HMSA and regulations require that non-ambulatory
disabled cattle be humanely handled, FSIS has determined that it is not
necessary to amend this regulation because humane handling requires
that such cattle be promptly euthanized. FSIS does not believe that it
is necessary to require video surveillance. FSIS has issued
instructions to field personnel concerning humane handling requirements
for non-ambulatory disabled livestock (Directive 6900.1). FSIS will
revise instructions to the field and its operational procedures as
necessary to implement this final rule to include consideration of an
increase, when appropriate, in the number of humane handling
verification activities that inspection program personnel perform.
Comment: Several industry commenters who supported the proposal
recommended that FSIS make clear its procedure for determining when a
bovine animal is non-ambulatory disabled.
Response: FSIS determined that no additional changes to the
regulations were necessary to address this comment. The regulations
define non-ambulatory disabled livestock, which includes bovine, as,
``livestock that cannot rise from a recumbent position or cannot walk,
including, but not limited to, those with broken appendages, severed
tendons or ligaments, nerve paralysis, fractured vertebral column or
metabolic conditions'' (9 CFR 309.2(b)).
FSIS Directive 6100.1 ``Ante-mortem Livestock Inspection'' and an
associated ``Q and A'' document provide guidance to FSIS inspection
personnel for determining whether an animal is non-ambulatory disabled.
FSIS PHVs are trained to determine when a bovine is unable to rise or
unable to walk. FSIS will, of course, revise its directives as
necessary to ensure implementation of this final rule.
Comment: Several industry commenters who opposed the proposed
amendment stated that the current regulatory provision should remain
unchanged, allowing cattle that become non-ambulatory disabled after
passing ante-mortem inspection to be reevaluated by an FSIS PHV.
Response: FSIS disagrees with the comment. The events at the
Hallmark/Westland establishment demonstrate that FSIS inspection
personnel are not always notified when cattle become non-ambulatory
disabled after they pass ante-mortem inspection. Thus, under the former
regulations, and specifically at Hallmark/Westland, non-ambulatory
disabled cattle that had not consistently received proper and adequate
ante-mortem inspection were slaughtered for human food. In addition,
the events at Hallmark demonstrate that requiring re-inspection of
cattle that become non-ambulatory disabled after ante-mortem inspection
may have created an incentive for establishments to inhumanely attempt
to force these animals to rise. Therefore, FSIS has determined that a
change in the regulation is needed to ensure more effective and
efficient implementation of inspection procedures and compliance with
humane handling requirements at official establishments.
Comment: Several industry commenters opposed the proposed amendment
because they believed that changing the regulation would be a
significant expense for small and very small meat processors. However,
the comments did not include any data to support this assertion. The
commenters stated that having FSIS PHVs re-evaluate the animal provides
the establishments with the ability to salvage an animal that may have
slipped and broken a leg, or temporarily became too exhausted to move
to slaughter.
Response: As noted above, FSIS inspection personnel have not always
[[Page 11465]]
been notified when cattle become non-ambulatory disabled after they
pass ante-mortem inspection. In addition, requiring re-inspection of
cattle that become non-ambulatory disabled after ante-mortem inspection
may have created an incentive for establishments to inhumanely attempt
to force these animals to rise. Allowing this re-inspection may have
encouraged establishments or livestock producers to hold ill or injured
cattle from slaughter longer in an attempt to allow them to
sufficiently recover to pass the initial ante-mortem inspection before
collapsing.
Further, the re-inspection rule may have provided an incentive for
livestock producers to hold cattle until they were already weakened.
Holding dairy cattle until they become exceptionally old or weak before
sending them to slaughter allows producers to extract as much milk as
possible in the hope that they are able to pass the initial ante-mortem
inspection before going down. Sending such weakened cattle to slaughter
increases the chances that they will go down and then be subjected to
conditions that are inhumane. This revision of the rule removes the
incentive to send such weakened cattle to slaughter and decreases the
chances of inhumane conditions.
Therefore, the amendments in this rule are needed to ensure the
effective implementation of ante-mortem inspection and humane handling
requirements at all official establishments, including small or very
small facilities. Also, as discussed below, the Agency's analysis of
the estimated cost of this rule to small and very small establishments
would be about $883,500 to $1,342,600 annually, which is insignificant
compared to the value of their annual production of about $8.4 billion.
These commenters did not explain the basis for their assertion or offer
alternative data demonstrating the inadequacy of the data used by the
Agency to estimate the costs of this rule.
Comment: Several industry commenters who opposed the proposed
amendment stated that the risk of BSE is very low because of
interlocking safeguards that the U.S. has implemented, and that, thus,
the change to current policies is unnecessary.
Response: This final rule may help to reinforce the existing
prohibition on the slaughter of non-ambulatory disabled cattle by
ensuring the humane disposition of such animals at official
establishments. In addition, FSIS has concluded that this final rule
will better ensure more efficient and effective implementation of
inspection and humane handling requirements at official establishments.
Comment: One industry commenter criticized the economic analysis
because FSIS stated that it is difficult to estimate the passing-
through of industry cost to consumers.
Response: FSIS calculated the cost impact using the best data that
are available to the Agency, which includes both survey data and market
data. The cost impact is at most 0.01% of small and very small
establishments' annual production. Therefore, there is strong evidence
for concluding that the cost of the rule is not significant. The costs
that industry will pass through to consumers do not affect the total
cost estimate. In the proposed and final Executive Order 12866 and
Regulatory Flexibility Act analyses, FSIS recognizes that industry will
pass some of its costs to consumers.
The commenter did not explain the basis for concluding that the
data used by FSIS was inadequate. In addition, the Agency did not
receive any data suggesting the cost estimates that it presented in the
proposal were inaccurate. Therefore, the Agency is not revising its
original cost estimates.
Comment: One meat association that supported the proposal stated
that the Agency should make clear that the amendments in this final
rule that prohibit the slaughter of non-ambulatory disabled cattle,
including those that become non-ambulatory disabled after passing ante-
mortem inspection, do not affect the current regulatory provisions
concerning the setting aside of non-ambulatory veal calves.
Response: The provisions of this final rule do not affect 9 CFR
309.13. Under the final rule, all non-ambulatory disabled cattle that
are offered for slaughter, including non-ambulatory veal calves, must
be condemned and disposed of in accordance with 9 CFR 309.13. Section
309.13 of 9 CFR applies after livestock, including veal calves, have
been condemned. Among other provisions, 9 CFR 309.13(b) provides that
veal calves that are unable to rise from a recumbent position and walk
because they are tired or cold may be set apart and held for treatment
but only under appropriate FSIS supervision.
Comment: One industry commenter requested that the Agency clarify
that the prohibition of the slaughter of non-ambulatory disabled cattle
has no bearing on the stunning of some breeds in the outside pen prior
to entering the slaughter facility.
Response: All cattle, regardless of the breed, are subject to ante-
mortem inspection at official establishments. Some cattle breeds, such
as Longhorns and Watusis, are typically stunned in outside pens after
ante-mortem inspection because the width of their horns prevents them
from entering slaughter facilities. After stunning, these animals are
then moved inside the facility. This proposed rule has no effect on
this practice. However, if such cattle are non-ambulatory disabled,
they cannot proceed to slaughter and must be condemned and properly
disposed of.
Executive Order 12988
This final rule has been reviewed under the Executive Order 12988,
Civil Justice Reform. Under this rule: (1) All State and local laws and
regulations that are inconsistent with this rule will be preempted; (2)
no retroactive effect will be given to this rule; and (3) no
retroactive proceedings will be required before parties may file suit
in court challenging this rule. Following the proposed rule, FSIS did
not obtain any new data or receive specific comments concerning the
effects of this rule that would lead FSIS to change its estimates in
the proposed Executive Order 12866 and Regulatory Flexibility Act
analysis. Therefore, the Executive Order 12866 and the Regulatory
Flexibility Act analysis below are consistent with the analyses in the
proposed rule (73 FR 50891).
Executive Order 12866 and the Regulatory Flexibility Act
This rule was reviewed by the Office of Management and Budget under
Executive Order 12866 and was determined to be significant.
This rule will require that all cattle that are non-ambulatory
disabled at any time prior to slaughter in official establishments,
including those that become non-ambulatory disabled after passing ante-
mortem inspection, be condemned and disposed of properly. This rule is
necessary to better ensure effective and efficient implementation of
inspection procedures and of humane handling requirements.
Cost of the Final Action
Under this rule, the beef industry will lose the market value of
certain non-ambulatory disabled cattle that the establishments could
have slaughtered for human food after the cattle passed the re-
inspection. Based on the Agency's 2007 survey data, out of the
approximately 33.7 million cattle slaughtered in 2007,\1\ FSIS
estimates that about 1,300 cattle--about 600 cull cattle (i.e., mostly
cows and bulls) and
[[Page 11466]]
700 steers and heifers--were in this category.\2\ Data from the
Agricultural Marketing Service (AMS) indicate that the market value for
a cull cattle carcass and parts is between $500 and $1,000, and the
market value for a steer or heifer carcass and parts is between $900
and $1,100 (National Weekly Cattle and Beef Summary and National Weekly
Cow and Boneless Beef Summary, USDA Livestock & Grain Market News
(http://www.ams.usda.gov/LSMarketNews), June 2008). Therefore, the
estimated total market value of the carcasses and parts from cattle
that would be condemned under this final rule would be in the range of
$930,000 to $1,370,000 per year. This estimate is conservative in that
it does not take into account the salvage value less the cost for
handling and disposal of the condemned carcasses.
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\1\ FSIS Animal Disposition Reporting System (ADRS) database,
2007. Number does not include veal calves or other calves.
\2\ To estimate the number of such cattle, FSIS conducted two
surveys on the number of cattle that became non-ambulatory after
ante-mortem inspection then passed the re-inspection in July through
December 2007. One survey focused on establishments that slaughter
predominantly cull cattle, and the other focused on ones that
slaughter steers and heifers. FSIS extrapolated the 6-month data to
annual figures.
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Although the above analysis focuses on costs to the beef industry,
the industry eventually will pass at least some part of the additional
cost to consumers through higher prices or reduced production. This is
an indirect cost to the consumers and is difficult to estimate ex-ante
without data.
Benefits of the Final Rule
This final rule is intended to ensure more effective and efficient
implementation of inspection procedures and improve compliance with
humane handling requirements. This action will provide efficiencies to
food safety inspection by removing the regulatory provision that
permits establishments to seek re-inspection to determine whether
certain non-ambulatory cattle can be tagged as ``U.S. Suspect'' if
those cattle become non-ambulatory disabled after passing ante-mortem
inspection.
Regulatory Flexibility Analysis
The FSIS Administrator has determined that this final rule will not
have a significant impact on a substantial number of small entities, as
defined by the Regulatory Flexibility Act (5 U.S.C. 601). In the Final
Regulatory Impact Analysis of SRM final rule,\3\ the Agency estimated
that the rule would possibly affect 2,026 small and very small beef
slaughter establishments. This includes 680 federally inspected
establishments and 1,346 state inspected establishments. Such potential
effects are not, however, expected to be significant given the very
small number of cattle involved.
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\3\ See Economic Analysis: Final Regulatory Impact Analysis
Final Rule, Prohibition of the Use of Specified Risk Materials for
Human Food and Requirements for the Disposition of Non-Ambulatory
Disabled Cattle Offered for Slaughter, and Prohibition of the Use of
Certain Stunning Devices Used to Immobilize Cattle during Slaughter
(FSIS Docket No. 03-025F), FSIS/USDA, June 28, 2007. http://www.fsis.usda.gov/Regulations_&_Policies/2007_Interim_&_Final_Rules_Index/index.asp.
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The estimated total annual cost of this rule of $930,000 to
$1,370,000 is for the entire beef industry. The Agency estimates that
small and very small establishments slaughter about 95% to 98% of the
1,300 non-ambulatory disabled cattle estimated from the survey.
Therefore, the estimated annual cost to the small and very small
establishments would be about $883,500 to $1,342,600, which is
insignificant compared to the value of their annual production of about
$8.4 billion.\4\
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\4\ The value is measured by dressed carcass equivalent, ibid.,
pp.161-169.
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Paperwork Reduction Act
This rule has been reviewed under the Paperwork Reduction Act and
imposes no new paperwork or recordkeeping requirements.
Additional Public Notification
Public awareness of all segments of rulemaking and policy
development is important. Consequently, in an effort to ensure that
minorities, women, and persons with disabilities are aware of this
proposed rule, FSIS will announce it online through the FSIS Web page
located at http://www.fsis.usda.gov/regulations_&_policies/2009Interim_&_Final_Rules_Index/index.asp. FSIS will also make
copies of this Federal Register publication available through the FSIS
Constituent Update, which is used to provide information regarding FSIS
policies, procedures, regulations, Federal Register notices, FSIS
public meetings, and other types of information that could affect or
would be of interest to constituents and stakeholders. The Update is
communicated via Listserv, a free electronic mail subscription service
for industry, trade groups, consumer interest groups, health
professionals, and other individuals who have asked to be included. The
Update is also available on the FSIS Web page. Through the Listserv and
Web page, FSIS is able to provide information to a much broader and
more diverse audience. In addition, FSIS offers an e-mail subscription
service which provides automatic and customized access to selected food
safety news and information. This service is available at http://www.fsis.usda.gov/news_and_events/email_subscription/. Options range
from recalls to export information to regulations, directives and
notices. Customers can add or delete subscriptions themselves, and have
the option to password protect their accounts.
List of Subjects in 9 CFR Part 309
Ante-mortem inspection.
0
For the reasons discussed in the preamble, FSIS is amending 9 CFR
Chapter III as follows:
PART 309--ANTE-MORTEM INSPECTION
0
1. The authority citation for part 309 continues to read as follows:
Authority: 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
0
2. Section 309.3(e) is revised to read as follows:
Sec. 309.3 Dead, dying, disabled, or diseased and similar livestock.
* * * * *
(e) Establishment personnel must notify FSIS inspection personnel
when cattle become non-ambulatory disabled after passing ante-mortem
inspection. Non-ambulatory disabled cattle that are offered for
slaughter must be condemned and disposed of in accordance with Sec.
309.13.
Done at Washington, DC, on: March 16, 2009.
Alfred Almanza,
Administrator.
[FR Doc. E9-5987 Filed 3-16-09; 4:15 pm]
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