[Federal Register Volume 89, Number 91 (Thursday, May 9, 2024)]
[Rules and Regulations]
[Pages 39540-39566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09717]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 71, 77, 78, and 86
[Docket No. APHIS-2021-0020]
RIN 0579-AE64
Use of Electronic Identification Eartags as Official
Identification in Cattle and Bison
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the animal disease traceability regulations to
require that eartags applied on or after a date 180 days after
publication in the Federal Register of this final rule be both visually
and electronically readable in order to be recognized for use as
official eartags for interstate movement of cattle and bison covered
under the regulations. We are also clarifying certain record retention
and record access requirements and revising some requirements
pertaining to slaughter cattle. These changes will enhance the ability
of Tribal, State and Federal officials, private veterinarians, and
livestock producers to quickly respond to high-impact diseases
currently existing in the United States, as well as foreign animal
diseases that threaten the viability of the U.S. cattle and bison
industries.
DATES: This rule is effective November 5, 2024.
FOR FURTHER INFORMATION CONTACT: Dr. Alexander K. Turner, Acting
Director, Animal Disease Traceability and Veterinary Accreditation
Center, Strategy and Policy, VS, APHIS, 2150 Centre Ave., Building B,
Fort Collins, CO 80526; (970) 494-7353.
SUPPLEMENTARY INFORMATION:
Background
Under the Animal Health Protection Act (AHPA, 7 U.S.C. 8301 et
seq.), the Secretary of Agriculture has the authority to issue orders
and regulations to prevent the introduction into the United States and
the dissemination within the United States of any pest or disease of
livestock. Within the U.S. Department of Agriculture (USDA), the Animal
and Plant Health Inspection Service (APHIS) has primary regulatory
responsibility to prevent, control, and eradicate communicable diseases
of livestock in the United States. Knowing where diseased and at-risk
animals are, where they have been, and when, is indispensable in
emergency response and in ongoing disease control and eradication
programs.
The animal disease traceability regulations, which were set forth
in a final rule \1\ published on January 9, 2013 (78 FR 2040-2075,
Docket No. APHIS-2009-0091) and are contained in 9 CFR part 86, provide
the requirements for identification and documentation for certain
classes of cattle and bison to move interstate. These regulations
establish minimum national official identification and documentation
requirements for the traceability of livestock moving interstate. The
species covered in the regulations include cattle and bison (sexually
intact and 18 months of age or older, all female dairy cattle of any
age and male dairy cattle born after March 11, 2013, cattle and bison
of any age used for rodeo or recreational events, and cattle and bison
of any age used for shows or exhibitions), sheep and goats, swine,
horses and other equids, captive cervids (e.g., deer and elk), and
poultry.
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\1\ To view the final rule, supporting documents, and comments
we received, go to: https://www.regulations.gov/docket/APHIS-2009-0091.
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Under the regulations, official identification devices or methods
are determined by the APHIS Administrator. An ``official identification
device or method'' is defined in Sec. 86.1 of the regulations as ``[a]
means approved by the Administrator of applying an official
identification number to an animal of a specific species or associating
an official identification number with an animal or group of animals of
a specific species or otherwise officially identifying an animal or
group of animals.''
One of the approved identification methods for cattle and bison
covered by part 86 is an official eartag. An official eartag is defined
in Sec. 86.1 of the regulations as ``[a]n identification tag approved
by APHIS that bears an official identification number for individual
animals. Beginning March 11, 2014, all official eartags manufactured
must bear an official eartag shield. Beginning March 11, 2015, all
official eartags applied to animals must bear an official eartag
shield. The design, size, shape, color, and other characteristics of
the official eartag will depend on the needs of the users, subject to
the approval of the Administrator. The official eartag must be tamper-
resistant and have a high retention rate in the animal.'' The other
methods of official identification of cattle and bison include
``[b]rands registered with a recognized brand inspection authority and
accompanied by an official brand inspection certificate, when agreed to
by the shipping and receiving State or Tribal animal health
authorities; or [t]attoos and other identification methods acceptable
to a breed association for registration purposes, accompanied by a
breed registration certificate, when agreed to by the shipping and
receiving State or Tribal animal health authorities; or Group/lot
identification when a group/lot identification number (GIN) may be
used.'' 9 CFR 86.4(a)(1)(ii) through (iv).
Historically, APHIS has used metal, non-electronic identification
(EID) tags for animal identification in disease programs for many
decades and has approved both non-EID and radio frequency
identification (RFID, a form of EID) tags for use as official eartags
in cattle and bison since 2008.
Since the enactment of the animal disease traceability regulations,
APHIS has worked with stakeholders to enhance its traceability capacity
within the Animal Disease Traceability (ADT) program. In January 2017,
APHIS staff officers met with State officials and
[[Page 39541]]
APHIS Veterinary Services field officers to gather input on what was
working well in the traceability program and what gaps remained. A
report of our findings was published in April 2017 (https://www.aphis.usda.gov/traceability/downloads/adt-assessment.pdf). Among
other findings, the report discussed gaps in tracing animals due to the
challenges of reading and recording numbers from non-EID eartags. A
similar gap identified was the need for greater efficiency in
collecting Animal Identification Numbers (AINs) or other official
identification numbers of individual animals at slaughter and removing
those identification numbers from future tracing efforts. Eliminating
this gap was determined not to be feasible with visual-only eartags,
but could be achieved with EID eartags.
On April 4, 2017, we published in the Federal Register (82 FR
16336, Docket No. APHIS-2017-0016) a notice \2\ announcing a series of
public meetings aimed at soliciting comment on the animal disease
traceability program. A total of nine public meetings were hosted by
APHIS between April and July of that year, and an additional meeting
was hosted by the Kansas Department of Agriculture. As discussed in the
April 2017 notice, the purpose of the meetings paralleled the prior
discussion with State officials and APHIS field officers: to ``hear
from the public about the successes and challenges of the current ADT
framework.'' We specifically solicited attendance from cattle and bison
industry members, as well as impacted States and Tribes.
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\2\ To view the notice, go to: https://www.regulations.gov/document/APHIS-2017-0016-0001.
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The notice and meetings generated 462 written public comments. A
working group composed of State and Federal officials, formed in March
of 2017 to plan and attend the public meetings, was further tasked with
listening to the discussions and preparing a final report summarizing
input from the meetings and proposing directions to address gaps in the
traceability system. The report was presented at the National Institute
for Animal Agriculture fall public forum in September of 2017 and
published in April of 2018 (https://www.aphis.usda.gov/publications/animal_health/adt-summary-program-review.pdf).
During the remainder of 2017, 2018, and 2019, APHIS personnel
frequently met with stakeholders to discuss questions and topics that
arose during the 2017 outreach meetings. In addition to individual and
industry organization meetings, APHIS officers met with State officials
as well as industry stakeholders at national public forums including
the United States Animal Health Association and the National Institute
for Animal Agriculture forum.
During this period, cattle and bison organizations provided
significant and ongoing input on the animal disease traceability
program. Although not everyone agreed, many stakeholders commented that
electronic records and electronic identification were of significant
value and were needed to protect the industry from diseases with
potential for high economic impacts.
While APHIS focuses on interstate movement of livestock, States and
Tribal Nations remain responsible for the traceability of livestock
within their jurisdictions. APHIS partners with State veterinary
officials each year to test the performance of States' animal disease
traceability systems with regard to the interstate movement of cattle
and bison covered under 9 CFR part 86. (Tribes are free to request such
test exercises on a voluntary basis and APHIS will report to the Tribes
the results of any such exercise. At this time, Tribes have not
requested such test exercises.) Results of these test exercises can be
viewed on APHIS' traceability web page.\3\ The results indicate that
when State veterinary officials are provided an identification number
from an animal that has been identified with an official identification
eartag, whether non-EID (e.g., metal or plastic) or electronic, and the
number has been entered accurately into a data system, States on
average can trace animals to any one of these four locations in less
than 1 hour: the State where an animal was officially identified, the
location in-State where an animal was officially identified, the State
from which an animal was shipped out of, and the location in-State that
an animal was shipped out-of-State from. However, lengthy times or
failed traces in the test exercises resulted when numbers from non-EID
tags were transcribed inaccurately, movement records were not readily
available, or information was only retrievable from labor-intensive
paper filing systems. We believe electronic tags and electronic record
systems provide a significant advantage over non-EID tags and paper
record systems, or systems that involve manual entry of tag numbers, by
enabling rapid and accurate reading and recording of tag numbers and
retrieval of traceability information.
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\3\ See ADT Trace Performance Metric Report 2013-2022. https://www.aphis.usda.gov/traceability/downloads/adt-trace-perf-report-2013-2022.pdf.
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In support of greater efficiency in traceability and in furtherance
of the above-listed program goals, on July 6, 2020, we published in the
Federal Register (85 FR 40184-40185, Docket No. APHIS-2020-0022) a
notice \4\ in which we announced our proposal to approve only RFID tags
as the official eartag for use in interstate movement of cattle and
bison that are covered under the regulations. Specifically, the notice
proposed that:
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\4\ To view the notice, supporting documents, and comments we
received, go to: https://www.regulations.gov/document/APHIS-2020-0022-0001.
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Beginning January 1, 2022, USDA would no longer approve
vendors to use the official USDA shield in production of visual eartags
or other eartags that do not have RFID components.
On January 1, 2023, RFID tags would become the only
identification devices approved as an official eartag for cattle and
bison pursuant to Sec. 86.4(a)(1)(i).
For cattle and bison that have official USDA visual
(metal) tags in place before January 1, 2023, APHIS would recognize the
visual (metal) tag as an official identification device for the life of
the animal.
The 2020 notice further clarified that we were proposing no changes
to the regulations pertaining to, nor proposing to restrict the use of,
other official identification methods authorized by 9 CFR
86.4(a)(1)(ii) through (iv) (such as the use of tattoos and brands when
accepted by State veterinary officials in the sending and receiving
States).
We solicited comments on the 2020 notice for 90 days ending on
October 5, 2020. We received 935 comments by that date from industry
groups, producers, veterinarians, State departments of agriculture, and
individuals.
Many of the commenters representing industry organizations and
State department of agriculture regulatory officials were supportive of
the transition and agreed with APHIS that RFID allowed for greater
efficiency than non-electronic means of identification and furthered
the goals of the ADT program with regard to animal traceability. We
also received many comments expressing opposition to the proposal.
These commenters expressed concern about issues including perceived
costs, retention time on the animals of RFID eartags, as well as our
legal authority under the Administrative Procedure Act (5 U.S.C. 500 et
seq.) to change the eartag requirements using a
[[Page 39542]]
notice-based procedure rather than rulemaking.
After reviewing the comments on the July 2020 notice, we determined
that withdrawing our recognition of visual-only (non-EID) eartags as
official eartags for cattle and bison moving interstate would
constitute a change in the application of our regulatory requirements
of sufficient magnitude to merit rulemaking rather than the notice-
based process we originally envisioned. We also determined that the
goal of maximizing transparency and public participation would also
best be served through rulemaking in this instance. Therefore, on March
23, 2021, we issued a stakeholder announcement indicating that we would
not finalize the 2020 notice, and that we ``would use the rulemaking
process for further action related to the proposal.'' \5\
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\5\ The notice was posted to https://www.aphis.usda.gov/aphis/newsroom/news/sa_by_date/sa-2021/rfid-traceability-rulemaking. It is
available by contacting [email protected].
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To that end, on January 19, 2023, we published in the Federal
Register (88 FR 3320-3330, Docket No. APHIS-2021-0020) a proposal \6\
to amend the animal disease traceability regulations to require that
eartags applied on or after a date 6 months (180 days) after
publication in the Federal Register of a final rule be both visually
and electronically readable in order to be recognized for use as
official eartags for interstate movement of cattle and bison covered
under the regulations. The proposed rule differed from the 2020 notice
in that we referred to electronic identification (EID) tags rather than
to RFID tags to recognize the permissibility of other electronically
readable technology, in addition to RFID technology, should it become
available in the future. We also proposed several other changes to part
86 aimed at clarifying the regulations, including revising the
definition of dairy cattle, amending certain provisions pertaining to
recordkeeping, and revising certain requirements pertaining to
slaughter cattle. We began soliciting comments concerning the proposal
for 60 days, ending March 20, 2023, and in response to several requests
by commenters, we extended \7\ the comment period by 30 days to April
19, 2023.
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\6\ To view the proposal, supporting documents, and the comments
we received, go to https://www.regulations.gov/document/APHIS-2021-0020-0001.
\7\ The comment extension notice was published on March 20, 2023
(88 FR 16576, Docket No. APHIS-2021-0020).
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We received 2,006 comments by the extended date. The comments were
from industry groups, producers, veterinarians, State departments of
agriculture, and individuals.
Similar to the response to the notice published on July 6, 2020,\8\
many of the commenters representing industry organizations and State
departments of agriculture regulatory officials were supportive of the
proposed rule and agreed that EID furthered the goals of the ADT
program with regard to animal traceability. We also received many
comments expressing opposition to our proposal. Our responses to those
comments are provided below, organized by topic.
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\8\ See footnote 4.
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General Comments
Several commenters stated that our proposed rule would not improve
animal disease traceability because an insufficient number of animals
are covered under the proposed rule. These commenters noted that USDA
has stated that a participation rate of 70 percent of the nation's
cattle herd would be necessary for an ADT program to be effective.
Having a higher percentage of the nation's cattle population
officially identified would certainly be a benefit to a robust ADT
program, but our focus in this rulemaking is to continue to enhance our
ability to respond quickly to high-impact diseases of livestock within
the constraints of the animal classes and movements that are currently
required to have official identification and the animal classes and
movements that are currently exempted.
The source \9\ cited by the commenters was the 2009 Congressional
testimony of Dr. John Clifford, a former APHIS Deputy Administrator for
Veterinary Services. Dr. Clifford was testifying about what measures
were in place to survey for and respond to the possible introduction of
high-risk foreign animal diseases (FADs) into the United States. His
comments should be viewed through that lens and understood to mean
that, in order to be fully prepared for a possible incursion of an FAD,
an estimated 70 percent \10\ of animals of a specific species/sector
would need to be traceable. At the time of his testimony, Dr. Clifford
estimated that 25 percent of the nation's beef cattle herd participated
in the USDA's National Animal Identification System (a voluntary system
that prefigured the current ADT program). The higher the number of
animals that are traceable, the higher the likelihood that we are able
to trace any particular instance of disease and effectively respond.
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\9\ https://www.usda.gov/sites/default/files/documents/5_5_09_Clifford_Dep_Admin_for_Vet_Services_APHIS_National_Animal_ID.pdf.
\10\ More recently, a 2018 World Perspectives study commissioned
by the National Cattlemen's Beef Association estimated that a window
of 45 percent to 90 percent, with a midpoint of 68 percent, is
needed for traceability to have ``national significance.''
(``Comprehensive Feasibility Study: U.S. Beef Cattle Identification
and Traceability Systems.'' World Perspectives, Inc. 2018.)
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These statements do not preclude APHIS from taking measures, such
as our proposed rule, to move closer to that stated objective, nor do
they contradict our claim that our proposal would improve the efficacy
of our current ADT program. For the reasons outlined in the proposed
rule and summarized above in this document, requiring EID for eartags
will improve our ability to trace the cattle and bison that are
currently required to have official identification and that meet this
requirement with eartags.
A commenter stated that our proposed rule would not improve ADT
because our proposal included no measure to solve problems with paper
records by, for example, requiring the digitization of paper records
used in disease traceback investigations.
We are making no change in response to the commenter. While the
regulations do not require the digitization of paper records, APHIS has
elsewhere encouraged the use of electronic recordkeeping through
efforts such as targeted funding to State and Tribal animal health
officials operating under an ADT cooperative agreement to support their
electronic recordkeeping systems and maintain their internal databases
used for animal disease traceability. Cooperators have used this
funding in a variety of ways, including providing accredited
veterinarians and livestock markets with free EID readers. Partly as a
result of these efforts, electronic interstate certificate of
veterinary inspections (ICVIs) are readily available now and frequently
used. Moreover, our proposal included editing language in the
definition of interstate certificate of veterinary inspection (ICVI) in
Sec. 86.1 to clarify that electronic ICVIs may be used as an
alternative to paper ICVIs. Our intention with respect to this change
was to continue to encourage electronic recordkeeping in order to
further alleviate the potential problems caused by paper records.
However, because electronic ICVIs may sometimes be impracticable for
the regulated community, we are not requiring the use of electronic
ICVIs.
A commenter stated that typos were not a legitimate basis for major
Federal action and claimed that APHIS was suggesting that ranchers
``are doing sloppy work.''
[[Page 39543]]
Transcription errors in animal location and movement documents have
the potential to significantly impede trace investigations. APHIS
recognizes that producers and others who complete these documents
typically take care in producing the documents; however, reading and
transcribing tag identifiers by hand, especially National Uniform
Eartagging System (NUES) tags that may be obstructed with debris or
worn down, is a process that is inherently subject to human error.
Errors can occur at the level of writing, reviewing, or completing
movement documents, and an error in recording a single digit can have
major impacts on a trace.
Some commenters stated that APHIS has failed to articulate the need
for the proposed EID requirement, as the current ADT program has proven
adequate. One of these commenters cited examples of successful disease
outbreak control of bovine tuberculosis (TB) in Michigan; mad cow
disease in Washington in 2003; and foot-and-mouth disease (FMD) in
California in 1929.
Successes in the past do not mean EID is unnecessary. As explained
in the proposed rule and summarized earlier in this document, APHIS
partners with State veterinary officials each year to test the
performance of States' animal disease traceability systems. Results of
these test exercises currently show that when State veterinary
officials are provided an identification number from an animal that has
been identified with an official identification tag, either metal or
EID, that has been entered accurately into a data system, over half of
States can trace animals to any one of four locations in less than 1
hour (these four locations are: the State where an animal was tagged,
the location in-State where an animal was tagged, the State from which
an animal was shipped out of, and the location in-State that an animal
was shipped out-of-State from). However, lengthy times in the trace
test exercises resulted when numbers from visual (metal) tags were
transcribed inaccurately, movement records were not readily available,
or information was only retrievable from labor-intensive paper filing
systems. EID tags and electronic record systems thus provide
significant advantage over other forms of official identification to
rapidly and accurately read and record tag numbers and retrieve
traceability information.
As for the examples cited by the commenter, Michigan was unable to
regain TB-free status in the vast majority of the State until
improvements to its traceability program were made following the
State's implementation of the mandatory use of RFID ear tags in cattle
and bison in 2007. Michigan faces a unique challenge in eradicating
bovine TB, as the disease is endemic in free-ranging white-tailed deer
present in specific areas of Michigan, and the disease can be
transmitted between deer and cattle. Because of this, Michigan
maintains a split-state status for TB: the State is divided into a
Modified Accredited Zone and Accredited Free areas.\11\ International
trading partners and States have required Michigan to maintain a robust
traceability program to continue to allow animals to move
internationally or to other States from the Accredited Free areas of
Michigan. Utilizing mandatory RFID tags in this traceability program
allows immediate uploading of accurate records to the Michigan
Department of Agriculture and Rural Development's system, which in turn
allows Michigan to show their trading partners proof of where animals
have been within the State, and helps to guarantee rapid response in
the event of an animal disease emergency.
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\11\ The Modified Accredited Zone is currently comprised of 4
counties; the State's remaining 79 counties are Accredited Free
areas (https://www.michigan.gov/mdard/animals/diseases/bovine-tuberculosis).
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In addition to allowing for more rapid tracing of animals into and
out of TB-positive herds, the mandatory RFID tagging requirement allows
Michigan to provide real-time animal movement data for animals leaving
the Modified Accredited Zone. This program allows State and Federal
animal health officials to trace potentially exposed herds within
hours, as opposed to days or weeks, saving both time and money. TB
traces in Michigan are linked to source and exposed herds more
accurately, which reduces the number of additional herds impacted by
quarantine and testing. We believe Michigan's experience further
supports our contention that increased use of EID eartags nationwide
will improve APHIS's animal disease traceability program.
Regarding the 1929 outbreak of FMD in California, historically,
cattle movement in the United States was much smaller. Animals today
can be transported quickly and easily across State lines, allowing for
a much more rapid and uncontrolled spread of disease. While the United
States was fortunate to contain the disease in 1929, containing an
outbreak would be far more difficult today. Moreover, the cost of
containment, eradication, and the loss of export markets would far
outweigh the cost of EID tags.
Regarding the 2003 case of bovine spongiform encephalopathy (BSE,
``mad cow disease'') in Washington, the diseased cow was traceable to
Canada. The United States was unable to trace all the cows in the
diseased cow's cohort, leading to suspicion that more cows with BSE
existed in the United States, which resulted in negative impacts to
cattle prices and export markets that lasted several years.\12\ We
consider this further support for improving the animal disease
traceability program, as we believe that a more effective and efficient
animal disease traceability program may have prevented those impacts.
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\12\ Coffey, B., Mintert, J., Fox, J.A., Schroeder, T.C. and
Valentin, L., 2005. The economic impact of BSE on the US beef
industry: product value losses, regulatory costs, and consumer
reactions. Kansas State University Agricultural Experiment Station
and Cooperative Extension Service, MF-2678.
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As we have previously stated, in order to be fully prepared for a
possible incursion of a high-risk FAD, an estimated 70 percent of each
species/sector would need to be traceable. To be an effective tool for
disease control, the traceability must be successful to the source of
the disease and exposed animals within the time window of the
particular disease's exposure and transmission parameters. This
rulemaking furthers this goal.
Some commenters claimed that the ADT program's goal to trace an
animal from birth to death in less than 24 hours was flawed, as birth-
to-death traceability is not needed for fast-moving diseases such as
FMD. The commenter suggested that the program need only trace where the
infected animal has been in the last few days. The commenters also
claimed that slow-moving diseases such as TB do not require rapid
traceback.
The ADT program does not have a goal of tracing an animal from
birth to death in less than 24 hours; the ADT program's goal is to be
able to trace animals' movements completely and as rapidly as necessary
to contain the disease in question, which depends on the speed of
disease transmission.
Traceability is necessary for controlling both fast-moving
diseases, like FMD, as well as slower-moving diseases, like TB and
brucellosis. In both cases, speed of data retrieval and information
sharing is important for efficiently and effectively completing a trace
investigation. Responders can better identify animals that may have
come in contact with an affected animal, which sometimes can number in
the thousands or tens of thousands, implement mitigation strategies,
and thereby minimize the economic impact of outbreaks to the industry.
This speed of information retrieval and sharing is
[[Page 39544]]
enhanced when electronic identification and recordkeeping methods are
utilized.
A commenter stated that use of EID eartags would not be enough to
help control a potential FMD outbreak, and that prevention should be
the first line of defense.
APHIS agrees that a response to FMD in the United States would
require a multifactorial approach. As explained in Dr. Clifford's 2009
testimony \13\ before Congress, APHIS' response plan includes specific
emergency response guidelines; coordination with Departments and
Agencies that will support and partner with USDA in emergency response;
rapid response teams stationed around the country; access to personnel
through the International Animal Health Emergency Response Corps; the
National Veterinary Stockpile; and guidelines regarding the use of FMD
vaccine.
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\13\ See footnote 9.
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Moreover, while prevention and biosecurity are necessary first-line
defenses, we do not agree that they are sufficient risk mitigation
strategies alone. EID eartags will make the process of tracing infected
and exposed animals more efficient and will improve our implementation
of mitigations, like tracing animals forward or utilizing vaccination
or regionalization strategies. EID would be critical to reopening
export markets closed as a result of an FMD outbreak, as the rapid
tracing afforded by EID would help the United States demonstrate
freedom from disease and disposition of all infected and exposed
animals.
A commenter stated that early diagnosis and good animal husbandry
are more important to disease control than ADT, as evidenced by the
failure of EID to prevent the porcine epidemic diarrhea (PED) outbreak
of 2013.
While we agree that good animal husbandry is important for
preventing disease and that early diagnosis can help prevent its
spread, this does not negate the importance of an ADT program, which
can help us contain potentially devastating disease outbreaks before
they can do substantial damage.
The commenter is correct that electronic identification of swine
moving interstate would not have materially impacted the spread of PED.
However, this is due to the nature of the disease and swine industry
practices, rather than a failure of EID identification. The primary
mechanism of PED spread was through fomites (e.g., pig feed, trucks,
etc.) and not animal-to-animal contact where tracing would have been of
greater benefit. In contrast, diseases of cattle and bison, such as TB,
brucellosis, and FMD, often are transmitted by animal-to-animal contact
and, when the cattle or bison are moving in interstate commerce, the
diseases can rapidly damage the cattle and bison industry in multiple
States.
Some commenters disagreed that our proposal would address animal
disease outbreaks because they claimed the risk of outbreaks of
diseases of livestock originates from people crossing the border into
the United States. Commenters specifically cited the risk of human-to-
animal transmission of TB.
The commenter's claim that disease outbreaks of TB in cattle and
bison are largely the result of zoonosis, and exposure to infected
humans is not supported by data. Information from APHIS' National
Tuberculosis Eradication Program indicates that TB is usually spread
through the purchase of infected animals or exposure to infected cattle
or wildlife. While human-to-animal transmission of TB may periodically
occur, genomic testing shows the incidence to be low.
Some commenters disagreed that our proposal would address livestock
disease outbreaks because they claimed the risk of livestock disease
outbreaks originates from imported cattle and beef. The commenters
suggested that APHIS focus its efforts on restricting imports to
prevent the introduction of livestock disease rather than improving
ADT.
This rulemaking is limited in scope to improving our national
animal disease traceability program; restrictions on the importation of
live animals and animal products are outside of its scope. We note
that, under our regulations in 9 CFR part 93, APHIS only allows the
importation of live animals from countries that meet certain freedom
from disease testing requirements. Under 9 CFR part 94, APHIS similarly
restricts the importation of animal products based on the animal
disease status of the exporting region. Animals and animal products
that do not meet these requirements may not be imported into the United
States.
A commenter stated that the proposed rule does not mention
biosecurity and, therefore, is not focused on disease prevention.
We agree with the commenter that biosecurity is important to
preventing disease and encourage producers to follow biosecurity
practices. The commenter is correct that this final rule is not focused
on disease prevention. As acknowledged in the proposed rule, the intent
of the proposed rule was not to prevent disease epidemics. Rather, it
would facilitate containing disease outbreaks before they can do
substantial damage to the U.S. cattle and bison industries. This final
rule is specifically focused on improving our ability to trace animals
accurately and rapidly in order to prevent that potential damage.
Many commenters who opposed the proposed EID tag requirement based
their opposition on issues related to food safety. Commenters stated
that the majority of food-borne illnesses in meat are the result of
practices at the slaughterhouse and in processing and handling. Since
animal identification programs end at the time of slaughter, commenters
argued that requiring EID tags on cattle will not increase food safety.
Within the USDA, food safety of meat and meat food products falls
under the purview of the Food Safety and Inspection Service (FSIS).
APHIS does not have statutory authority to regulate for food safety.
The EID eartag requirement is intended to facilitate animal disease
traceability, thereby improving our ability to trace outbreaks of
diseases of livestock in live animals and more efficiently control or
eradicate these diseases. This is consistent with our statutory
authority under the AHPA.
It was further stated that, to address food safety and animal
disease, APHIS should increase oversight and testing at the large meat
processing plants. The commenters felt that would be more effective in
preventing the spread of disease than requiring EID eartags.
As noted above, FSIS is a separate agency of USDA that regulates
the slaughter and processing of meat and meat food products. APHIS does
not provide oversight of the slaughter or processing operations;
however, APHIS conducts surveillance for domestic animal diseases, such
as brucellosis and TB, and some foreign animal diseases in certain
species through slaughter surveillance. APHIS regularly evaluates its
slaughter surveillance programs for efficacy; however, we disagree with
the commenter that more stringent oversight of such facilities would
prove more effective than requiring EID tags. Slaughter facilities are
a terminal point, and cattle and bison may pass through multiple
intermediate locations and commingle with animals from other premises
and of other health statuses prior to slaughter. In the event of a
disease outbreak, addressing this possible intermediate movement
requires rapid and accurate traceability of all potentially affected
livestock.
Some commenters asked us to reinstate mandatory country of origin
labeling (COOL) in order to have a successful traceability program.
Some commenters asked whether we intended
[[Page 39545]]
to use EID tags for the purposes of COOL.
COOL pertains to the labeling of food products and is not related
to APHIS' animal disease traceability program. Moreover, COOL was never
under APHIS' purview, but under the purview of the Agricultural
Marketing Service (AMS).
Some commenters expressed their support for the continued exemption
of cattle under 18 months of age from official identification
requirements.
The regulations will continue to exempt most feeder cattle (beef
cattle less than 18 months of age) from official identification
requirements.
A commenter stated that ADT should only apply to breeding cattle or
cattle in interstate commerce. Conversely, other commenters recommended
that we apply the EID tag requirement to all cattle and/or that all
cattle should be tagged at birth or before being sold, as this would
improve our ability to locate diseased animals and lessen the effects
of a disease outbreak. Some of these commenters added that this issue
should be addressed in a separate rulemaking.
We will consider the commenters' recommendations in the future;
however, changing the type of cattle needing official identification is
outside the scope of this rulemaking. Should APHIS decide to change the
type of cattle that require official identification in the future, this
process would occur through rulemaking that would solicit public
comment.
Some commenters expressed concern about APHIS expanding ADT
requirements to encompass other types of cattle in the future.
This rulemaking is only intended to address the transition to EID
official eartags for cattle and bison that are currently required to
have official identification.
Some commenters expressed confusion regarding whether the EID tag
requirement applied to their animals. Commenters provided various
examples of beef cattle that do not move interstate, or that moved
interstate but were less than 18 months of age. It was stated that the
rule would require producers to tag their direct-to-slaughter cows and
bulls. Similarly, two commenters requested that we exclude small
producers from the EID eartag requirements in order to reduce burden on
these entities.
This final rule does not change the types of animals to which
official identification requirements apply, nor does it change the
categories of animals that are exempted from official identification
requirements. Under the current regulations in Sec. 86.4(b), which
this final rule does not change, the following categories of cattle and
bison are subject to official identification requirements for
interstate movement: all sexually intact cattle and bison 18 months of
age or over; all female dairy cattle of any age and all male dairy
cattle born after March 11, 2013; cattle and bison of any age used for
rodeo or recreational events; and cattle and bison of any age used for
shows or exhibitions. Cattle and bison are exempted from official
identification requirements if they are going directly to slaughter.
Because of these strictures, many small entities have cattle that
are excluded from the requirement currently, including many of the
commenters who asked whether the rule applies to them. Beef feeder
cattle under 18 months of age are not subject to the identification
requirements. Direct-to-slaughter cattle, including cull cattle, are
not subject to the identification requirements. Cattle and bison that
do not move interstate are not subject to the identification
requirements, unless required by APHIS program disease regulations in 9
CFR subchapter C.
Some commenters stated that when the new EID tag requirement goes
into effect, we should continue to exempt animals moved between States
on pasture-to-pasture movement permits, i.e., commuter herd agreements,
from the requirements for official identification.
The EID tag requirement does not change the categories of animals
that are subject to, or exempted from, the requirements for official
identification.
Under a commuter herd agreement between a livestock owner and State
or Tribal animal health officials, cattle and bison may be moved
interstate between two premises, without a change of ownership in the
course of normal livestock operations, subject to the conditions of the
agreement. The regulations in Sec. 86.4 provide for interstate
movement of commuter herds under commuter herd agreements. See 9 CFR
86.4(b)(1)(i)(A). The EID tag requirement does not affect those
regulations and, therefore, does not have any implications for the
interstate movement of commuter herds.
A commenter stated that animals involved in private treaty sales
for the purpose of breeding should be exempt from EID tag requirements
when moved interstate.
This comment is outside the scope of this rulemaking. Per Sec.
86.2(b), no person may move covered livestock interstate or receive
livestock moved interstate unless all requirements of part 86 are met.
Private treaty sales of breeding cattle are required to meet these
requirements, including official identification and an ICVI.
A commenter stated that allowing animals to move through a
livestock facility to a slaughter establishment where a backtag can be
applied, in accordance with Sec. 86.4(b)(1)(ii)(B), leaves a potential
gap in traceability to the premises of origin.
Section 86.4(b)(1)(ii) refers to a situation in which cattle are
exempted from the requirement for official identification. Exemptions
from the requirement for official identification are outside the scope
of this rulemaking.
A commenter stated that finalizing this proposed rule would
``invite limitless incremental regulation from other agencies.''
The commenter's stated supposition for this statement is that this
rulemaking represents a concerted effort by the Federal Government, as
a whole, to wrest livestock management decisions from individual
producers. APHIS has no intent to do so, nor is it aware of any such
effort.
The same commenter opined that the rule could be used by APHIS as a
basis for incremental further expansion of the ADT program, citing, as
purportedly analogous examples, requirements by the Security and
Exchange Commission regarding environmental, social, and governance
reporting, and policies by the Food and Drug Administration regarding
the use of antibiotics in livestock.
APHIS has no authority over the regulatory actions and policies of
other agencies. However, as noted above, the proposed rule is a
distinct action meant, primarily, to change the official eartag
requirements for cattle and bison covered by the ADT regulations in
order to improve its emergency response and ongoing disease control and
eradication programs. The proposed rule is not intended as part of a
suite of interlocking, incremental regulatory changes to the
regulations, and any possible future revisions to the regulations would
be through proposed rules with the opportunity for public comment.
Some commenters, while generally supporting the use of EID eartags
for official identification of cattle and bison, believed that such use
should be voluntary rather than a requirement.
The use of EID official eartags has been voluntary for many years.
In our view, and as stated above, continuing to allow the use of EID
eartags by producers on a voluntary basis will not provide the degree
of enhancement to our traceability capacity that is needed
[[Page 39546]]
for optimal animal disease investigation and control.
We also received a number of comments regarding the public comment
period and outreach efforts related to this rulemaking. A few
commenters stated that more stakeholder outreach was needed. Some
commenters stated that APHIS ignored previous stakeholder outreach in
drafting our proposed rule. Some commenters requested an extension of
the comment period, ranging from 30 days to 90 days, to allow more time
for public input.
We extended the comment period for the proposed rule by 30 days,
which we consider appropriate given our prior outreach efforts to
stakeholders. We disagree that our outreach efforts were inadequate or
that the feedback received during our outreach efforts was ignored. As
stated in the proposed rule and summarized earlier in this document,
outreach included meetings with State officials and APHIS Veterinary
Services field officers; nine public meetings that solicited attendance
from cattle and bison industry members, as well as impacted States and
Tribes; the July 2020 notice seeking public comment for 90 days; as
well as the January 2023 proposed rule, which solicited comment for a
total of 90 days. All input and comments received from these efforts
were considered when drafting this rulemaking.
Effective Date and Implementation
Some commenters advocated grandfathering in existing eartags, i.e.,
recognizing visual tags, such as National Uniform Eartagging System
eartags, as official eartags for animals tagged with them prior to
November 5, 2024, the effective date of the EID tag requirement.
We agree with these commenters. As we noted in the proposed rule,
visual eartags applied to animals prior to November 5, 2024 will be
recognized as official eartags for the life of the animal.
Some commenters expressed concern about the effective date of
November 5, 2024, stating that 6 months was a relatively short amount
of time to notify producers of the new requirements and for producers
to meet the EID tag requirement. Other commenters expressed support for
our proposed timeline.
We believe that an effective date of November 5, 2024 provides
sufficient time for stakeholders to comply with the new requirements.
APHIS has engaged in extensive outreach efforts regarding the use of
EID eartags, as summarized earlier in this document, and it has ensured
that the new requirements will only apply to eartags applied to animals
after the effective date.
Two commenters stated that implementation of the proposed rule
would be difficult due to a general labor shortage.
We note that producers may apply official eartags to their animals
themselves. Whether producers have tags applied to their animals at
approved tagging sites, apply tags to their animals themselves, or hire
labor to apply tags to their animals, we do not believe there is more
labor involved in the application of EID eartags as opposed to applying
eartags that are only visually readable.
Multiple commenters expressed concern about potential shortages of
EID tags in light of supply chain and manufacturing challenges. Some
commenters mentioned that EID tags are often backordered or that there
are high wait times for EID tag orders. Some commenters recommended we
create a contingency plan in the event EID tags required by this
rulemaking are not available once the final rule goes into effect.
APHIS ADT staff have had frequent conversations with manufacturers
of official devices and have been assured that manufacturing and
shipping capacity is adequate for the projected number of cattle
requiring official identification for interstate movement.
APHIS is aware of supply chain and manufacturing disruptions due to
the COVID-19 pandemic, but these issues have been resolved. APHIS is
also aware of long wait times due to customization or brand preferences
that are desired by the producer, but the regulations do not require
such customizations or that any specific brand be used. We do not
believe either of these issues indicate that a current shortage exists
or that a future shortage is likely, and the commenters have not
provided any additional evidence of reasonably foreseeable supply chain
issues.
Finally, as discussed in further detail later in this document, we
believe that the streamlining changes we proposed to the approval
process for new EID devices will help insulate against unforeseen
supply chain disruptions.
Definitions (Sec. 86.1)
In Sec. 86.1, we proposed to revise the definitions of approved
tagging site, dairy cattle, interstate certificate of veterinary
inspection (ICVI), and official eartag. We also proposed to add a new
definition for Official Animal Identification Device Standards (OAIDS).
Comments we received for each of the revisions and addition to Sec.
86.1 are addressed below.
Approved Tagging Site
The current regulations define an approved tagging site as ``A
premises, authorized by APHIS, State, or Tribal animal health
officials, where livestock may be officially identified on behalf of
their owner or the person in possession, care, or control of the
animals when they are brought to the premises.'' In order to offer
greater clarity regarding the nature of an approved tagging site by
specifying that such sites are where official identification tags are
physically applied to animals, we proposed to revise this definition to
read as follows: ``A premises, authorized by APHIS, State, or Tribal
animal health officials, where livestock without official
identification may be transferred to have official identification
applied on behalf of their owner or the person in possession, care, or
control of the animals when they are brought to the premises.''
One commenter, while expressing support, suggested we also revise
the definition to require the physical address of the originating
premises to be recorded alongside the animal's official identification
number in order to address a purported ambiguity in the current
regulations. The commenter stated that, occasionally, livestock exempt
from the official identification requirements for interstate movement
by Sec. 86.4(b)(1)(i)(C) that arrive to an approved tagging site only
have their official identification numbers recorded with the physical
address of their originating premises if they receive their official
identification at the tagging site, while, for livestock that arrive
already bearing official identification and only have backtags applied
at the tagging site, no record is made of their originating premises.
We are making no change in response to this comment. Cattle moving
interstate, whether or not already bearing official identification,
must be accompanied by an ICVI or alternative movement document. (See
Sec. 86.5(a).) These records contain the physical address of the
animal's originating premises. Therefore, in both scenarios referenced
by the commenter, records correlating the animal's official
identification number to their originating premises already exist, and
we do not agree that the definition of approved tagging site is an
appropriate place to reference these records requirements.
However, if States or Tribes wish to require an approved tagging
site to complete this additional recordkeeping, they could do so as
part of their State or Tribal agreements for authorizing an
[[Page 39547]]
approved tagging site, as requirements for approved tagging sites may
vary according to the relevant authority.
One commenter asked whether a ranch was considered an approved
tagging site and, if so, whether this involved an approval process.
Another commenter asked how a location can become an approved tagging
site.
Per the definition of approved tagging site, approved tagging sites
may be authorized by State, Federal, or Tribal animal health officials.
Individual States maintain lists of the approved tagging sites in their
State. The commenters are encouraged to contact the appropriate animal
health official in their area \14\ to receive a list of approved
tagging sites in their State, as well as information regarding becoming
an approved tagging site. Requirements for approved tagging sites may
vary depending on the relevant authority.
---------------------------------------------------------------------------
\14\ Contact information for State animal health officials
(SAHOs) may be found at: https://www.usaha.org/saho.
---------------------------------------------------------------------------
A commenter stated that the process for becoming an approved
tagging site should be consistent with the process for becoming a
Secondary Tagging Site for the Agriculture Marketing Service Process
Verified Program.
We are making no change in response to the comment, as approved
tagging sites, as defined in Sec. 86.1 are not related to Process
Verified Programs. As mentioned above, approved tagging sites may be
authorized by State, Federal, or Tribal animal health officials.
Accordingly, the requirements for authorizing an approved tagging site
may vary depending on the relevant authority.
One commenter asked whether all in-State general auction markets
were approved tagging sites.
No. In-State general auction markets may become approved tagging
sites if authorized as such by APHIS, State, or Tribal animal health
officials.
Dairy Cattle
The current definition for dairy cattle reads, ``All cattle,
regardless of age or sex or current use, that are of a breed(s) used to
produce milk or other dairy products for human consumption, including,
but not limited to, Ayrshire, Brown Swiss, Holstein, Jersey, Guernsey,
Milking Shorthorn, and Red and Whites.'' We proposed to add to this
definition cattle that are reared under the same management practices
as purebred dairy cattle. The definition in the proposed rule read:
``All cattle, regardless of age or sex, breed, or current use, that are
born on a dairy farm or are of a breed(s) used to produce milk or other
dairy products for human consumption, or cross bred calves of any breed
that are born to dairy cattle including, but not limited to, Ayrshire,
Brown Swiss, Holstein, Jersey, Guernsey, Milking Shorthorn, and Red and
Whites.'' Commenters raised concerns that caused us to further revise
this definition, which we discuss later in this document.
We also proposed changes throughout part 86 to align the
regulations with this revised definition. This included revising Sec.
86.4(b)(1)(iii)(B) to include the offspring of dairy cattle in the list
of cattle subject to the official identification requirements, as well
as revising Sec. 86.5(c)(7)(ii) to require that the official
identification numbers of all dairy cattle, regardless of whether the
dairy cattle are sexually intact, must be recorded on ICVIs.
Multiple commenters expressed their support for the revised
definition for dairy cattle presented in the proposed rule, stating
that the revision would help eliminate confusion and ambiguity.
We agree with the commenters. Eliminating ambiguity in the
definition will help ensure that all dairy cattle, which have an
increased risk of disease, meet the appropriate requirements for
official identification and movement documentation.
A commenter requested we clarify whether our proposed revision
intends to capture beef animals ``born on a dairy farm,'' and, if so,
requested that we clarify that these animals would be required to have
official identification if moved interstate. The commenter also noted
that compliance challenges may present themselves in situations where
an animal's farm of birth is unknown.
The increased disease risk relevant to animals born on a dairy farm
that we discussed in the proposed rule applies specifically to beef/
dairy cross bred cattle born on a dairy farm. We agree with the
commenter that the phrase ``born on a dairy farm'' is unclear, as it
may give the false impression that it applies to beef animals born on a
dairy farm that are not beef/dairy cross bred animals. Therefore, we
are revising our proposal to address this potential confusion. The
revised definition of dairy cattle will read as follows: ``All cattle,
regardless of age or sex or current use, that are of a breed(s) or
offspring of a breed used to produce milk or other dairy products for
human consumption, including, but not limited to, Ayrshire, Brown
Swiss, Holstein, Jersey, Guernsey, Milking Shorthorn, and Red and
Whites.''
Some commenters, while expressing their support for a revised
definition, asked us to replace the phrase ``cross bred calves of any
breed'' in the revised definition presented in the proposed rule with
the phrase ``cross bred cattle of any breed'' to further eliminate
confusion regarding to which animals the definition applies.
The commenters are correct that we intended to capture cross bred
cattle of any age, rather than only calves, in our proposed revised
definition. We believe the modification to the proposed definition
provided above addresses these commenters' concern.
One commenter asked whether the change to the dairy cattle
definition would apply across all Federal regulations administered by
APHIS. The commenter stated that consistency in definitions would
prevent discrepancy and aid enforcement.
In the proposed rule, we proposed to revise definitions in 9 CFR
parts 71, 77, and 78 to correspond with the changes to the definitions
that we proposed for part 86. While we accounted for the definitions of
official eartag and interstate certificate of veterinary inspection
(ICVI), we erroneously neglected to account for the definition of dairy
cattle, which the commenter correctly points out is also used in part
78. Therefore, we will revise the definition of dairy cattle in part 78
to correspond with the change to the definition made in part 86.
Some commenters disagreed with our proposed revised definition,
arguing that there is no increased risk of disease transmission from
cattle that are reared under the same management practices as purebred
dairy cattle.
We disagree with the commenters. As stated in the proposed rule,
dairy farm management practices, such as pooling colostrum from
multiple cows for many calves, commingling calves at different
locations during their lifetimes, and movement to many destinations,
result in a higher risk of disease transmission. Beef/dairy crosses
born on dairy farms are likely to be exposed to these practices,
especially in early life; therefore, they are at an increased risk of
disease transmission.
Two commenters stated that our revised definition would discourage
producers from including beef/dairy cross bred calves as part of their
operations.
The commenter provided no evidence to support this claim. We also
note that APHIS' operational guidance has consistently held that beef/
dairy cross bred cattle fall under the definition of dairy cattle, and
are therefore already required to have official identification; our
change to the dairy cattle definition codifies this longstanding
guidance
[[Page 39548]]
regarding how to interpret the regulations.
Interstate Certificate of Veterinary Inspection (ICVI)
We proposed to add editorial and formatting changes to the
definition of interstate certificate of veterinary inspection (ICVI) to
clarify that electronic ICVIs may be used.
A commenter stated that APHIS should require the recording of
official identification on ICVIs at the most specific applicable level.
The commenter opined that official individual animal identification
numbers should be recorded on ICVIs even when animals are identified
using a group/lot identification number (GIN).
We are making no changes in response to the comment. A GIN is used
to uniquely identify a unit of animals of the same species that is
managed as one group throughout the preharvest production chain.
Animals identified using a GIN are not required to have the GIN, or any
additional animal identification number, affixed to them. Instead, the
GIN is recorded on documents accompanying the animals as they move
interstate. Because these animals move as a unit, a GIN provides
sufficient information to identify the animals in the event of a trace.
We also note that cattle and bison typically do not move on GINs due to
the current industry structure within the United States.
A commenter asked us to clarify in the definition of ICVI that
accredited veterinarians who issue ICVIs must be licensed and
accredited in the State of origin of the animal requiring
documentation, as the current definition only requires that issuing
veterinarians are licensed in State of origin and federally accredited.
We are making no changes in response to the commenter, as we do not
agree that the definition of ICVI is an appropriate place to state the
regulations and standards relevant to accredited veterinarians. The
commenter is incorrect that the definition of ICVI lists licensure or
accreditation requirements for veterinarians. Requirements for
licensure and accreditation for veterinarians are covered in 9 CFR part
161.
Official Animal Identification Device Standards (OAIDS)
We proposed to add a definition of Official Animal Identification
Device Standards (OAIDS) to replace the Animal Disease Traceability
General Standards document. The proposed OAIDS, like the existing
Standards document, provides guidelines, technical standards, and
specifications for tag manufacturers requesting APHIS approval of new
official identification devices. As stated in the proposed rule, in
addition to edits corresponding to changes proposed to the regulations,
changes to the document include the following:
Accepting EID device testing equivalent to International
Committee for Animal Recording (ICAR) testing and allowing APHIS to
consider requests, on a case-by-case basis, for approval of alternative
field trials or eartags with previously generated verifiable data if
equivalency to the standards is demonstrated;
Modifying the field trial requirements by reducing
timelines for the three approval statuses (trial: from 0-12 months to
0-6 months; preliminary: from 12-24 months to 6-12 months; and
conditional: from 24-36 months to 12-36 months), reducing the number of
required field trial locations (from at least 6 to at least 2), and
reducing the number of cattle and bison required for field trials (from
a minimum of 1500 to a minimum of 300); and
Reducing the timeframe before allowing unlimited sales of
devices from a minimum of 24 months to a minimum of 12 months if
devices meet the required performance standards.
Numerous commenters expressed support for this addition and the
changes we proposed to make to the document. These commenters noted
that streamlining the approval process for EID devices will ensure
availability of tags, insulate against supply chain disruptions, and
help facilitate the introduction of new technologies.
We agree with the commenters. As stated in the proposed rule, our
changes are meant to encourage manufacturers to seek APHIS approval of
new official identification devices.
One commenter expressed concern regarding reducing the timeframe
before allowing unlimited sales of a device from 24 months to 12
months, stating that this could compromise assurance of the devices'
quality and longevity.
We are making no changes in response to the commenter. Tag
retention, durability, safety, and efficacy are of utmost importance to
APHIS. Our approval process for EID eartags continues to require
testing and field trials or performance data that ensure the eartags
meet the required standards. We note the benchmark of unlimited sales
is conditional and does not constitute full approval. The timeframe for
full approval will remain 36 months (30 for swine); prior to full
approval, manufacturers are required to have a mechanism in place to
collect and report tag failure data to APHIS.
We believe that the tag standards listed in the OAIDS, including
the aforementioned 12-month timeframe for unlimited sales, will
maintain a high standard of quality without discouraging manufacturers
from applying for official status. As we noted in the proposed rule, we
determined that requiring manufacturers to wait 24 months before
allowing unlimited sales of a device that met the required performance
standards could have been inhibiting manufacturers from seeking APHIS
approval.
One commenter stated that the proposed changes to the OAIDS render
the proposed rule a major rule, as the document allows for ``regulatory
flexibility.''
Under the Congressional Review Act (CRA), major/non-major
designations occur at the final rule stage and are the purview of the
Office of Management and Budget based on an assessment of expected
annual costs associated with the rule. APHIS has no discretion to label
the rule major or not major under the CRA. However, we note that the
commenter's stated basis for considering the rule major does not align
with the criteria in the CRA, which is whether the rule is likely to
result in (1) an annual effect on the economy of $100,000,000 or more;
(2) a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; or (3) significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and export markets. 5 U.S.C. 804(2).
Two commenters stated we should reduce the required lifespan of a
device to 3 years from 10 years. One commenter stated 3 years was
sufficient because the typical lifespan for beef cattle going to
slaughter is 18-24 months. The other commenter stated a 10-year
requirement was a hindrance to the adoption of future technologies.
The commenters are incorrect that the requirements specify that
tags should have a lifespan of 10 years. The OAIDS states that a tag is
expected to remain on an animal in a physically functional state for
the animal's expected lifetime, which, for cattle and bison, is up to
15 years.
We disagree with the commenters that tags should only have a
lifespan of 3 years. Cattle and bison under 18 months of age and cattle
and bison going
[[Page 39549]]
directly to slaughter are exempt from the requirements for official
identification, rendering their example irrelevant. Moreover, a device
that only functions for 3 years would add burdensome costs to
producers, as they would need to replace tags more frequently. It would
also make record retention and tracing more difficult, especially for
longer-lived animals, as the animals would be associated with a
different identification number every 3 years.
Official Eartag
The current definition of official eartag reads, ``An
identification tag approved by APHIS that bears an official
identification number for individual animals. Beginning March 11, 2014,
all official eartags manufactured must bear an official eartag shield.
Beginning March 11, 2015, all official eartags applied to animals must
bear an official eartag shield. The design, size, shape, color, and
other characteristics of the official eartag will depend on the needs
of the users, subject to the approval of the Administrator. The
official eartag must be tamper-resistant and have a high retention rate
in the animal.'' We proposed to revise this definition to remove
language referencing the 2014 and 2015 dates, which are no longer
relevant. Our proposed revised definition reads as follows: ``An
identification tag approved by APHIS that bears an official
identification number for individual animals. The design, size, shape,
color, and other characteristics of the official eartag will depend on
the needs of the users, subject to the approval of the Administrator.
The official eartag must be tamper-resistant and have a high retention
rate in the animal.''
One commenter asked that we establish a standard for a ``high
retention rate'' to aid State officials in enforcement.
Retention rates required for approved EID tags have already been
established in the former Animal Disease Traceability General Standards
document and are included in the OAIDS. For cattle and bison, device
loss rates must not exceed 1 percent annually or 3 percent in a 3-year
period.
Additional Definitions
One commenter asked us to define the term premises, as one of the
dictionary definitions for ``premises'' necessitates a deed.
We are making no changes in response to the commenter, as we
believe the regulations are sufficiently clear that a premises in part
86 relates to a geographical location, not a deed. For example, the
definition of a premises identification number (PIN) in Sec. 86.1
describes a premises as ``a geographically distinct location.''
Recordkeeping Requirements (Sec. 86.3)
Section 86.3 addresses recordkeeping requirements for official
identification. Current Sec. 86.3(a) states that any State, Tribe,
accredited veterinarian, or other person or entity who distributes
official identification devices must maintain for 5 years a record of
the names and addresses of anyone to whom the devices were distributed.
We proposed to add a requirement to that paragraph that official
identification device distribution records must be entered by the
person distributing the devices into the Tribal, State, or Federal
databases designated by APHIS.
We also proposed to add a new paragraph (b), which would state that
records of official identification devices applied by a federally
accredited veterinarian to a client's animal must be recorded in a
readily accessible record system to help ensure such records are
available to APHIS for traceback investigations.
Finally, we proposed to add a new paragraph (d), stating that
records required under paragraphs (a) through (c) of Sec. 86.3 must be
maintained by the responsible person or entity and be of sufficient
accuracy, quality, and completeness to demonstrate compliance with all
conditions and requirements under part 86. The proposed new paragraph
further required that APHIS be allowed access to all records during
normal business hours, to include visual inspection and reproduction
(e.g., photocopying, digital reproduction), and the responsible person
or entity must submit to APHIS all reports and notices containing the
information specified within 48 hours of receipt of request for
records.
Two commenters asked us to amend Sec. 86.3(a) to allow the person
distributing EID eartags to provide records to a State official, via a
spreadsheet, and the State official to enter the records into a State
or Federal database.
We are making no changes in response to the commenter, as we
interpret our proposed change to Sec. 86.3(a) as written to already
allow for the arrangement described by the commenter. A person who
provides records to a State official to enter into a State or Federal
database would fulfill the requirement of entering the official
identification device distribution records into an acceptable database.
Two commenters asked us to amend Sec. 86.3(b) (redesignated in our
proposal as Sec. 86.3(c)) to read, ``Approved livestock facilities
must keep any ICVIs or alternate documentation that is required by this
part for covered livestock to enter the facility through interstate
movement'' rather than ``Approved livestock facilities must keep any
ICVIs or alternate documentation that is required by this part for the
interstate movement of covered livestock that enter the facility.'' The
commenters stated that this change would clarify that this requirement
is pertains to livestock moving to the market from out-of-state, rather
than moving from the market to an out-of-state facility.
We are making no change in response to the commenter, as we believe
the regulations as written are sufficiently clear that this paragraph
refers to livestock that enter an approved livestock facility from out
of state.
One commenter stated that the proposed rule was not specific enough
about who was responsible for recordkeeping. The commenter asked
whether the responsible party was the veterinarian, producer, or tag
distributor.
We disagree that these requirements are not sufficiently specific.
In our proposed rule, Sec. 86.3(a) specifies that any State, Tribe,
accredited veterinarian, or other person or entity who distributes
official identification devices is responsible for maintaining records
of the names and addresses of anyone to whom the devices were
distributed. In other words, the recordkeeping requirements of Sec.
86.3(a) apply to whoever distributes the official identification device
in any one transaction, whether that be a State, Tribe, accredited
veterinarian, or other person or entity. We also note that a producer
applying official identification devices to their own animals, but not
distributing the official identification devices to anyone else, does
not fall under Sec. 86.3(a).
In our proposed rule, Sec. 86.3(c) specifies that approved
livestock facilities are responsible for keeping ICVIs or alternate
documentation that is required by part 86 for the interstate movement
of covered livestock that enter the facility.
Two commenters stated that we should amend proposed Sec. 86.3(d)
to place the responsibility for ensuring ``accuracy, quality,
completeness'' of an ICVI on the veterinarian who created the ICVI, not
the approved livestock facility that maintains the document.
The commenters have misinterpreted the regulations. Contrary to the
commenters' implication, Sec. 86.3(d) does not specifically or
exclusively place
[[Page 39550]]
responsibility for the accuracy, quality, and completeness of ICVIs on
approved livestock facilities. Section 86.3(d) requires ``the
responsible person or entity'' to maintain records required under Sec.
86.3(a) through (c) and to ensure that they are accurate, of quality,
and complete. Multiple persons or entities may bear this
responsibility. Standards for accredited veterinarians in 9 CFR part
161 stipulate that accredited veterinarians cannot issue documents
unless they have been ``accurately and fully completed'' (9 CFR 161.4).
This standard applies to ICVIs or alternative documentation referred to
in Sec. 86.3(c). The approved livestock market maintaining ICVIs or
alternative documentation as required by Sec. 86.3(c) is responsible
for providing accurate information, such as information regarding which
animals have been sold and to whom, to a veterinarian creating ICVIs
for animals leaving the facility. Ensuring the continued accuracy,
quality, and completeness is also a part of the proper maintenance of
records and is not a standard limited to their creation.
Some commenters asked us to shorten the 48-hour timeframe for
entities to submit to APHIS all requested records to 24 hours, stating
that 48 hours was too long. Other commenters asked us to increase this
timeframe to 72 hours, as many livestock markets operate 1 day each
week and may not have the staff availability to meet the 48-hour
requirement and to align with the potential 72-hour national stop
movement order for livestock transport.
We believe that 48 hours is a reasonable compromise. While animal
traces should occur as quickly as possible, 24 hours may not be
practical for some markets, due to staffing and availability
constraints. The 72 hours cited by commenters refers to a potential
emergency response for highly contagious disease outbreaks, in which
all animal movement would be stopped for 72 hours. This potential order
should not affect the ability to provide information necessary for a
trace, and it would be disadvantageous to delay tracing until the order
were lifted, as the delay may inhibit the speed of our response to a
disease threat.
One commenter asked whether training on database use will be
provided to those responsible for recordkeeping.
We are unsure to which database the commenter is referring. The
proposed rule referred to three different types of recordkeeping: (1)
for recordkeeping of device distribution, APHIS provides training for
APHIS databases such as the Animal Identification Management System
(AIMS); (2) for recordkeeping of applying official ID, accredited
veterinarians may use AIMS or various medical record systems and
receive training from their vendors; (3) finally, State officials
maintain records of ICVIs and tag distributions in the State's
regulatory database for which APHIS does not provide training.
One commenter asked what would happen to records if an individual,
such as an accredited veterinarian, responsible for recordkeeping went
out of business.
Tag distributors must maintain records in accordance with Sec.
86.3, whether or not their business is still in service.
One commenter asked us to include the specific requirements of
recordkeeping in the final rule, rather than in the OAIDS, to increase
compliance.
We are making no changes in response to the commenter. Apart from
streamlining the approval process of new EID tags and applying changes
corresponding to this rulemaking, the OAIDS contains the same
information as the previous iteration of the document, titled the
Animal Disease Traceability General Standards document. As we have not
historically experienced problems due to the location of the
information contained within the Standards document, we do not have
reason to believe that the OAIDS is an unsuitable location for the
information contained therein.
One commenter asked us to add a time requirement of 48 hours for
entering records of distributed devices into an acceptable database.
As we have not experienced problems with the timely entrance of
distribution records into a database, we disagree that specifying a
time requirement in the regulations is necessary. The entry into a
database should occur immediately upon distributing the tags, because
the tags may be applied upon receipt to an animal for immediate
movement.
One commenter asked whether a producer who applied tags to their
animals themselves would be responsible for the recordkeeping
requirement in Sec. 86.3.
No. Under Sec. 86.3(a), a person distributing tags must maintain
for 5 years a record of the names and addresses of anyone to whom the
devices were distributed. If a producer is applying tags to their own
animals and not distributing tags to another person, this requirement
does not apply to them.
One commenter stated that they would prefer if States had
consistent forms for submitting recordkeeping information regarding EID
tag distribution to States.
This is outside the scope of this rulemaking. APHIS does not
mandate the type of form States must use for this recordkeeping.
Finally, in reviewing the proposed rule while drafting this final
rule, we noticed that our proposed Sec. 86.3(a) incorrectly omitted
mention of distribution records kept by large producer organizations
that redistribute tags to their members in their own databases. In
order to prevent the interpretation that this will no longer be
permissible, we are amending the second sentence of this paragraph to
state that identification device distribution records must be entered
by the person distributing the devices into the Tribal, State, Federal,
or other database acceptable to each government entity.
Official Identification for Cattle and Bison (Sec. 86.4)
Section 86.4 concerns official documentation required for different
species. As discussed earlier in this document, we proposed to revise
Sec. 86.4(a)(1)(i) to add the requirement that, beginning November 5,
2024, all official eartags sold for or applied to cattle and bison must
be readable both visually and electronically.
Some commenters stated that allowing EID tags to be visually
readable will fail to reduce, or will actually increase, human error as
individuals would be transcribing 15-digit, rather than 9-digit,
identification numbers, thus negating the intent of the rule.
We disagree that requiring EID tags to be visually readable will
increase the likelihood of human error. The 15-digit identification
numbers of the AIN numbering system currently used for all approved EID
eartags begin with the same 6 digits: 840003. The first 3 digits of an
AIN comprise the country code, which, for the United States, is 840.
The following 3 digits, 003, signal that the animal has been identified
using a sequential numbering system from a start number of
003,000,000,000. As a result, an individual visually reading an EID tag
would only read 9 unique characters (the characters following 840003).
These characters are comprised solely of numbers, whereas the 9-digit
NUES numbers are alpha-numeric. Moreover, EID eartags have readability
standards, while metal tags with NUES numbers do not. These include
larger font size and color contrast. Given these comparisons of AIN
numbers and NUES numbers, it is our view that transcription error is
not likely to significantly increase from the current
[[Page 39551]]
state when relying on visual read of the eartag; if anything, several
factors should make it easier, not harder, to transcribe the tag
number. However, the use of EID tags would allow for an electronic read
of the tag if a transcription error were believed to have occurred.
Some commenters asked for clarification about whether using brands
as official identification would continue to be acceptable. Others
stated that EID eartags should not replace brands as a means of
official identification.
We proposed no changes to the regulations pertaining to, nor did we
propose to restrict the use of, other methods of official
identification for cattle and bison authorized by the regulations,
which include ``brands registered with a recognized brand inspection
authority and accompanied by an official brand inspection certificate,
when agreed to by the shipping and receiving State or Tribal animal
health authorities'' (9 CFR 86.4(a)).
Some commenters expressed preference for brands over eartags,
claiming the former to be a more effective and reliable means of
identification.
As stated above, this rulemaking does not discontinue brands as an
official means of animal identification for cattle and bison. Brands
registered with a recognized brand inspection authority and accompanied
by an official brand inspection certificate remain an official means of
identification for cattle and bison, if agreed upon by the shipping and
receiving State.
Some commenters expressed concern about the retention rates of EID
eartags that may fall off the animal or may be relatively easy to
remove.
We do not agree that tag retention is a greater issue for EID tags
than metal tags. APHIS-approved official identification tags undergo
rigorous testing and trials to assure a retention rate of 99 percent (a
loss of no more than 1 percent per year) and are intended for the life
of the animal. While data on retention rates of metal NUES tags is
lacking, field experience and anecdotal observation from regulators at
the State and Federal level suggest that the retention rate of these
metal tags is lower than our required retention rate of EID eartags. As
one commenter mentioned, metal tags are not immune from potential
problems, including tag loss, illegibility, and infection.
Almost all reported retention issues with EID tags are due to user
error or use of unofficial tags intended for use for a shorter duration
in feedlot cattle.
Regarding removal, it is unlawful to intentionally remove any
official identification under current regulations in part 86. We
proposed no change to this regulation.
A commenter interested in selling alternative identification
devices that use Bluetooth and GPS technology stated that RFID tags are
unreliable and subject to fraudulent use.
As stated above, approved official identification tags undergo
rigorous testing and field trials to ensure they meet our high
standards for efficacy. The regulations prohibit the fraudulent use and
recording of official identification. Sections 86.3 and 86.4(d) and (f)
outline requirements regarding recordkeeping, removal, and sale or
transfer of devices.
Two commenters asked for an explanation of the protocol for
replacing lost EID eartags.
Procedures for replacing any lost official identification devices
are outlined in Sec. 86.4(d) and remain unchanged as a result of this
rulemaking.
Two commenters asked whether tags can be applied to animals
directly by producers, or whether tags must be applied at approved
tagging sites. One of these commenters stated that it should be
permissible for producers to apply tags themselves.
Current regulations do not stipulate that the tags can only be
applied at approved tagging sites. If a producer desires, they may
purchase tags directly from a vendor and apply the tags to their own
animals. In this case, the producer has no recordkeeping requirement
regarding tag distribution.
Some commenters expressed concern that tags produced in foreign
countries may compromise national security. Commenters also expressed
concern that foreign-sourced tags could increase the vulnerability of
the United States to supply chain sabotage.
Commenters provided no evidence to support the contentions that
tags produced in foreign countries may ``compromise national security''
or increase the vulnerability of the United States to ``supply chain
sabotage.'' However, all APHIS purchasing is compliant with all Federal
contracting laws and regulations and with the Buy American Act (41
U.S.C. 8301-8303). This has always been true of contract purchasing by
APHIS for the Animal Disease Traceability Program.
One commenter stated that PINs should not be a requirement to
acquire and apply EID tags as that information can be gathered on other
documents, such as health certificates.
The PIN is defined in 9 CFR 86.1 as a nationally unique number
assigned by a State, Tribal, and/or Federal animal health authority to
a premises that is, in the judgment of the State, Tribal, and/or
Federal animal health authority a geographically distinct location from
other premises. All currently approved EID eartags (RFID AIN ``840''
eartags) are associated with a PIN or a State location identification
number (LID), inasmuch as a PIN or a LID is required for purchase of
the tags (as stated in the OAIDS). A PIN is the numerical equivalent of
a 911 postal address or a GPS number. A LID is the State-managed
equivalent for producers who prefer to have the State store their
information, rather than the Federal Government.
The commenter did not explain their specific concerns regarding
PINs. That being said, we note that a PIN or LID is associated with the
location where cattle are tagged, rather than the location of the
cattle owner. Cattle may move to new locations that may have different
PINs, LIDs, or new owners at will, but the PIN or LID associated with
the location where the tag was placed on the animals remains specific
to that location, thus facilitating traceback of the animals to that
location when needed.
Health certificates cannot substitute for a PIN number because
although information on health certificates include the location where
the animal was loaded for interstate movement and destination location;
they do not necessarily provide the location where a tag was placed on
the animal.
Multiple commenters agreed with our decision to use language in the
regulations to keep EID technology-neutral. Other commenters expressed
support for their various preferred identification technologies, which
included UHF, biometric, Bluetooth, and satellite geolocation.
Commenters also asked whether high frequency or low frequency RFID tags
would be the required or recommended standard.
We are neither requiring nor recommending any one type of EID
eartag over another. Maintaining technological neutrality in the
regulations will allow APHIS to adapt to technological developments and
conduct animal disease traceability as rapidly and accurately as
possible. So long as devices meet the standards, including for
retention and safety, laid out in the OAIDS, and are readable both
electronically and visually, they may be approved for use by APHIS.
Producers will be able to decide which approved technology works best
for them, based on their individual circumstances.
[[Page 39552]]
Some commenters stated that EID infrastructure should also support
non-ADT uses.
EID infrastructure already supports non-ADT uses. For example, many
dairies use EID tags to tie individual animals to production and
management records. That information is separate from and not collected
by the ADT program.
One commenter asked whether, in the event of an emergency, State
departments of agriculture would be able to use orange EID tags
typically used for heifer calves for other animals.
States are free to distribute any color of EID tag that is
available. While orange tags are typically reserved for brucellosis
vaccinates, this is not a requirement in the regulations.
Two commenters expressed concern regarding the purported difficulty
of applying EID eartags. The commenters mentioned the difficulty of
organizing tags not packed in sequential order and applying tags in
cold conditions, as well as risk of fatigue and trauma to the hands.
The OAIDS provides guidance for packaging eartags, and states that
packaging must maintain the tags in sequential order. The commenters do
not provide evidence to support the implication that applying EID
eartags is significantly more difficult in cold conditions or prone to
causing fatigue and trauma to the hands than applying metal eartags or
other forms of approved official identification, such as brands.
One commenter stated that the USDA should target tag distribution
to cattle newly subject to the revised definition of dairy cattle, as
it now includes beef/dairy cross bred cattle.
As noted in the economic analysis that accompanied the proposed
rule, historically, APHIS has instructed dairy cattle operations that
beef/dairy cross bred cattle should follow the same traceability
regulatory requirements as purebred dairy cattle. Thus, official
identification requirements applied to these animals prior to the
implementation of this final rule and no targeted distribution is
necessary.
One commenter stated that we should maintain the current use of AIN
Device Managers to distribute official identification.
This final rule makes no changes to the current use of AIN Device
Managers. Individuals may continue to distribute AIN devices by
becoming AIN Device Managers. More information regarding this process
can be found in the OAIDS.
One commenter volunteered to be a tag distributor for bison
producers.
The commenter may reference the OAIDS document for further
information on how to become an AIN Device Manager and distribute tags.
Several commenters stated that the regulations should specify that
only 840-series, and not 900-series, EID tags may be used as official
identification on domestic cattle because 900-series tags are not
unique in their official identification. 840-series tags refer to EID
eartags that begin with the prefix ``840'' and are manufactured using
the AIN numbering system for the official identification of individual
animals born in the United States. 900-series tags refer to eartags
that begin with the prefix ``900,'' and are not manufactured for the
official identification of individual animals in the United States, but
are sometimes used by producers for individual livestock management
purposes.
We believe the regulations already address the commenters' concern
about the need for nationally unique numbers. Per the definition of
official eartag, an official eartag is an identification tag that bears
an official identification number. The regulations state that an
official identification number is a nationally unique number that is
permanently associated with an animal and adheres to the NUES system,
AIN system, location-based number system, flock-based number system, or
any other numbering system approved by the Administrator for the
official identification of animals.
Currently, all APHIS-approved EID eartags available for domestic
animals are manufactured using the 840-series AIN numbering system.
900-series tags do not meet the definition of an official eartag, as
they do not bear an official identification number. Although 900-series
tags may be suitable for non-ADT uses, they are not approved for use as
official ID for animals born in the United States.
We disagree that the regulations should require the use of any
specific numbering system. As stated in the proposed rule, this
flexibility will allow for the possibility that different numbering
systems may be developed and used in the future on EID eartags.
Additionally, situations may arise that require the use of official ID
that is not an 840-series tag. For example, cattle not born in the
United States may have official identification from the country of
origin or an alternate official ID approved by APHIS to designate a
non-U.S. born animal. The NUES numbering system is also allowed under
the regulations for official tags. Because NUES eartags applied to
animals before November 5, 2024 will still be recognized as official
for the lifetime of those animals, the NUES numbering format will still
be in use for some time after that.
Several commenters encouraged the USDA to allow the use of all
currently used EID tags as official identification for ADT purposes.
Two commenters specifically asked that we allow 900-series tags to be
used for official identification, as these tags are already used by
some producers.
We disagree with the commenters. Nine hundred-series EID eartags
currently used by producers for livestock management purposes do not
fulfil the requirements of EID eartags approved by APHIS for official
identification purposes. APHIS approves the use of EID eartags for
official identification that meet certain standards for durability,
efficacy, and safety. These standards are essential to ensuring that
methods of official identification meet industry needs and are retained
and effective for the purpose of traceability.
A 900-series tag could provide traceability for a single movement;
however, because the tag is not associated with an official
identification number, the initial distribution location and additional
movements would not be tracked or readily available for officials
performing disease traces. Additionally, other characteristics of the
900-series tags make them unsuitable for traceability. For example, it
is illegal to remove 840-series tags, while there is no regulation
preventing the removal, replacement, or reuse of 900-series tags.
One commenter asked whether official ID tags can be reused after
the death of an animal.
Tags cannot be reused. A requirement of official identification
tags is that they are unique and not reusable. This prohibition
prevents an animal in a disease trace from being confused with another
animal that should not be included in the trace.
One commenter stated that the proposed rule did not address the
problem of retiring eartags of dead livestock and asked about protocol
in such situations.
The commenter is correct that this proposal does not address tag
retirement protocols. Expired cattle generally do not pose a high
disease threat, although a lack of tag retirement data can pose
challenges in disease traces if the final disposition of the animal is
unknown. Retiring tags may become more feasible once EID is more
commonly used for official identification. As this rulemaking would
increase the use of EID, it may allow us to address this issue in the
future.
Some commenters stated that electric and magnetic fields (EMFs)
emitted by
[[Page 39553]]
RFID technology have the potential to harm humans and animals.
We do not agree with this comment. RFID tags are passive devices
and do not emit EMFs. The Food and Drug Administration is not aware of
any adverse health effects associated with RFID technology.
Several commenters asked us to require a specific placement and
color for EID eartags for the sake of simplicity and uniformity.
The commenters do not provide evidence of the potential benefits of
adding such a requirement. APHIS-approved official identification
eartags are available in multiple colors from several manufacturers and
vendors. The color orange is typically reserved by manufacturers for
official EID tags to be used in official calfhood vaccinates for
brucellosis, although the regulations do not require this. Otherwise,
the color of the tags is at the owner's discretion. The placement of
official RFID tags is recommended in the left ear, but there is no such
regulatory requirement, and the tags may be placed in either ear at the
owner's discretion.
One commenter stated that they have encountered problems finding
the identity of cattle with EID eartags, as they were unable to obtain
identifying information from the State about a stray bull found on a
ranch that had an 840-series eartag for identification.
Producer data confidentiality is highly valued and protected.
Availability of identifying information is limited to regulatory
officials for the purpose of disease tracing activities and not
available to the general public.
Several commenters asked that we address the issue of imported
cattle that have lost their eartags. One of these commenters stated
that they have encountered difficulties due to being unable to apply an
840-series tag to imported cattle that have lost their eartags.
It is not possible to tag animals born outside of the United States
with 840-series tags as 840 is the country code for the United States.
We recognize this is an issue and are working to provide an acceptable
EID alternative for imported cattle that lose their official
identification. However, this is outside the scope of this rulemaking.
Some commenters stated that branding as a method of official
identification should be phased out, citing animal welfare concerns.
One commenter stated that brands should not be used for animal disease
traceability, but rather restricted to use for proof of ownership.
The scope of this rulemaking is limited to official eartags for
cattle and bison. Other authorized forms of official identification,
including branding, are outside the scope of this rulemaking.
One commenter stated that ``male'' parts of RFID tags should be
more readily available from manufacturers, as these parts can fail.
APHIS is not aware of issues specific to ``male'' ends of RFID
tags. APHIS recommends that anyone encountering such issues contact the
relevant tag distributor or manufacturers, as manufacturers are
required to report tag issues to APHIS.
Movement Within Slaughter Channels
The existing regulations in Sec. 86.4(b)(1)(ii) allow cattle to
move interstate to an approved livestock market and then to slaughter
or directly to slaughter without official identification. Current Sec.
86.4(b)(1)(ii)(C) stipulates that the cattle or bison must be
identified if held for more than 3 days. The existing regulations are
silent on identification requirements for slaughter cattle or bison
that are not held at slaughter or held at slaughter for 3 or fewer days
and then move to a new location.
To address this potential gap in traceability, we proposed to add
paragraph (b)(1)(ii)(D) to Sec. 86.4 to read as follows: ``Cattle and
bison leaving a slaughter establishment may only be moved to another
recognized slaughter establishment or approved feedlot and can only be
sold/re-sold as slaughter cattle and must be accompanied by an owner-
shipper statement in accordance with Sec. 86.5(c)(1). Information
listed on the owner-shipper statement must include the name and address
of the slaughter establishment from which the animals left, the
official identification numbers, as defined in Sec. 86.1, correlated
with the USDA backtag number (if available), the name of the
destination slaughter establishment, or approved feedlot (as defined in
9 CFR 77.5) to which the animals are being shipped.''
This paragraph clarifies that the animals must stay within the
intended terminal slaughter channels but may be moved to an additional
slaughter plant or approved feedlot with appropriate documentation and
identification.
Two commenters expressed their support for this proposed change,
noting that it would expedite disease tracking.
Two commenters recommended improvements to the proposed new
language in Sec. 86.4(b)(1)(ii)(D) to allow cattle and bison leaving a
slaughter establishment to be moved to a USDA-approved livestock
auction (in addition to another slaughter establishment or feedlot).
We disagree with the commenters. Proposed paragraph Sec. 86.4
(b)(1)(ii)(D) clarifies that animals may only move to another slaughter
establishment or approved feedlot, with appropriate documentation and
identification, and must remain in a terminal market. If animals were
allowed to move from a slaughter facility to a livestock market for
resale outside of the slaughter channel without official
identification, they could circumvent the traceability regulations
required for animals that would otherwise move interstate to a market,
and thus become untraceable.
Multiple commenters asked us to add a definition of slaughter
channels in order to provide clear regulations about other movements of
cattle, including slaughter channel cattle not moving from points of
sale to slaughter facilities in a timely manner; slaughter channel
cattle being diverted from slaughter channels; and slaughter cattle
moving to unapproved feed yards and holding pens. One commenter asked
us to replace the phrase ``slaughter facility'' in Sec. 86.4 with the
term ``slaughter channel'' to clarify that livestock located anywhere
in a slaughter channel are subject to the additional health and
traceability requirements of the proposed rule.
We disagree with the commenters that a definition of slaughter
channel, or a replacement of the term ``slaughter facility'' with the
term ``slaughter channel,'' is needed, because any movement not
specifically described as an exemption in Sec. 86.4 requires the
animals to meet all requirements for official identification. This
includes the examples provided by the commenter if the cattle involved
do not meet the requirements for the exemptions.
EID in Use of More Than One Official Eartag
Section 86.4(c) concerns situations in which the use of more than
one official eartag is allowed. We proposed to remove references to
visual-only eartags in this section.
Specifically, current paragraph (c)(3) of Sec. 86.4 allows the
application of a radio frequency identification or visual-only tag
eartag with an animal identification number (AIN) having an 840 prefix
to animals already tagged with NUES tags and/or brucellosis vaccination
eartags. Because visual-only eartags will no longer be allowed as
official identification under part 86, we proposed to revise this
paragraph to state that a visually and electronically readable official
eartag may be applied to animals currently identified with non-EID
official eartags or vaccination tags.
[[Page 39554]]
We also proposed to remove Sec. 86.4(c)(4), which states that a
brucellosis vaccination visual eartag with a NUES number may be applied
to an animal that is already officially identified with one or more
official eartags. As a result of this rulemaking, the visual, i.e.,
non-EID, brucellosis NUES tag would no longer be allowed as official
identification under part 86, which eliminates the need for the
paragraph.
A commenter expressed confusion about whether and why it was
possible for an animal to have multiple forms of official
identification.
Section 86.4(c) allows for the use of more than one official eartag
in certain situations when the need to maintain the identity of an
animal is intensified, such as for export shipments, quarantined herds,
field trials, experiments, or disease surveys. Multiple forms of
official identification are also allowed if an individual wishes to
apply a visually and electronically readable official eartag to an
animal that is currently identified with non-EID official eartags or
vaccination tags. Our proposed rule did not include changes to the
situations in which an animal is allowed multiple forms of official
identification. To mitigate identification challenges associated with
these situations, additional recordkeeping is required in these
instances to ensure that adequate traceability is maintained.
Data Security
Many commenters expressed concerns related to data security and
confidentiality. Commenters sought clarity about what data APHIS would
collect when the requirement is implemented, where the data would be
stored, and with whom it would be shared.
Commenters did not elaborate on their specific data concerns in
great detail. APHIS takes care to protect personally identifiable
information (PII) and proprietary business information in its
recordkeeping, in compliance with the Privacy Act of 1974 (5 U.S.C.
552a).\15\ Moreover, an EID tag is encoded with a number but no owner-
specific information (e.g., a number that identifies the animal, such
as 840 001 018 932 052 or 42CXP9965).
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\15\ See the systems of records notice for the animal disease
traceability program, found at https://www.regulations.gov/document/APHIS-2011-0057-0001.
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We also note that APHIS and State animal disease traceability
databases are not public databases. They are accessible only to Federal
and State officials who meet strict permissions and security
requirements; therefore, proprietary information will not be available
to competitors or unauthorized individuals.
Some commenters expressed the view that producer information should
be exempt from Freedom of Information Act (FOIA; 5 U.S.C. 552)
requirements, in order to preserve the confidentiality of that
information for producers.
We are making no change in response to the comments, as APHIS does
not have the authority to define or redefine exemptions to FOIA. We can
only apply FOIA consistent with the statute and caselaw.
That being said, we believe that there are adequate provisions in
the law for the protection of confidential producer data. Some
commenters appear to have the misconception that all information in
Federal databases is available on request; however, FOIA and the
Privacy Act each provide substantial protections for producer
information, including the protection of financial and personal
identifying information. Under FOIA, Exemption 4 protects trade secrets
or commercial or financial information that is confidential or
privileged; and Exemption 6 protects information that, if disclosed,
would invade another individual's personal privacy. The Privacy Act
protects personal information held by the Federal Government by
preventing unauthorized disclosures of such information. Individuals
also have the right to review such information, request corrections,
and be informed of any disclosures. FOIA facilitates these processes.
Some commenters stated that the proposed rule does not adequately
protect producers' data from potential cyberattacks or security
breaches.
The commenters did not provide details regarding their specific
concerns regarding these hypothetical threats. Both State and Federal
databases undergo extensive security testing, restrictions, and
permission for access to assure that only authorized individuals may
access data. Both APHIS and States employ substantial teams of security
and information technology experts to assure data security and
integrity.
Commenters expressed differing views regarding where to keep animal
identification data collected as a result of this rulemaking. Some
commenters stated that a ``government'' or ``national'' database was
needed, others stated that data should be held in State databases and
shared with Federal officials when needed, while others stated that
data should be kept in private databases to protect confidentiality.
Animal traceability data and disease information are kept in
various Federal as well as State databases, with as-needed access
restricted to the State and Federal officials responsible for managing
high-impact diseases of the cattle industry. Device distribution
records may also be stored in databases kept by producer organizations
redistributing tags. As noted earlier, State and Federal databases
undergo extensive security testing, restrictions, and permission for
access, and both APHIS and State agencies employ teams of security and
information technology experts to ensure data integrity and security.
One commenter stated that producers should have access to records
of the animals produced on their farm after the animals leave the farm.
We disagree with the commenter, as this would compromise producer
data confidentiality. Availability of information stored in APHIS and
State animal disease traceability databases is limited to regulatory
officials for the purpose of disease tracing activities.
One commenter stated that data integrity needs to be maintained
when tags are retired and then reused.
Tags used for official identification are not reused.
One commenter stated that RFID technology can elicit and transmit
information from clothing, appliances, and vehicles, placing personal
information at risk.
The commenter provides no evidence to support this claim. RFID tags
that are currently approved for official use by APHIS are passive tags.
A passive tag is powered only by the reader emitting a radio signal,
which allows the antenna within the tag to emit a signal back to the
reader. There is no active power source within the tag, and the tag is
unable to emit any signal without first being exposed to an RFID
reader. There are no batteries associated with passive RFID tags.
Some commenters stated that data collection should be minimal, and
access to it should be limited to animal disease traceability purposes.
APHIS agrees. Data collection required by this final rule is
limited to the necessary information for adequate animal disease
traceability. Access to animal traceability data and disease
information kept in Federal and State databases is restricted to the
State and Federal officials responsible for managing high-impact
diseases of the cattle industry.
One commenter recommended APHIS make improvements to information
[[Page 39555]]
database systems to facilitate sharing of data between agencies.
The commenter did not detail specific improvements they believe
should be made. Enhanced sharing of electronic information with
appropriate permissions is one of the ADT program's goals. In the past,
we have supported this goal by efforts such as funding electronic
databases through cooperative agreements, and we intend to continue
doing so as funding allows.
One commenter stated that the software available from APHIS is not
user-friendly and asked us to provide software that will better meet
the requirements of this rule.
We are unsure to what software the commenter is referring.
Legal Issues
A commenter stated that APHIS lacks authority to require the use of
EID eartags, as the requirement does not directly and actively detect,
control, or eradicate pests or diseases, nor is it an operation or
measure such as ``drawing of blood and diagnostic testing'' authorized
by 7 U.S.C. 8308.
The legal basis for this rulemaking is the AHPA, under 7 U.S.C.
8305, by which the Secretary of Agriculture may restrict the movement
in interstate commerce of any animal, article, or means of conveyance
if the Secretary determines that the restriction is necessary to
prevent the introduction into or dissemination within the United States
of any pest or disease of livestock. This authority is not limited to,
as the commenter implies, the examples of ``drawing of blood and
diagnostic testing of animals'' under 7 U.S.C. 8308. Moreover, 7 U.S.C.
8308 supports, rather than undercuts, this rulemaking; it provides the
agency authority to ``carry out operations and measures to detect,
control, or eradicate any pest or disease of livestock,'' including but
not limited to diagnostic testing. Tracking via EID eartags is plainly
a measure for these activities; it inherently facilitates them by
allowing APHIS to quickly and easily identify livestock for the
detection, control, or eradication of any livestock pest or disease.
One of these commenters further stated that APHIS lacked the
authority to require EID tags because this requirement is not a valid
prohibition or restriction in interstate commerce authorized by 7
U.S.C. 8305.
We disagree with the commenter. The Secretary of Agriculture is
authorized by 7 U.S.C. 8305 to prohibit or restrict the movement in
interstate commerce of any animal, article, or means of conveyance if
the Secretary determines that the prohibition or restriction is
necessary to prevent the introduction or dissemination of any pest or
disease of livestock. The ADT program helps prevent the dissemination
of disease by helping minimize the effects of disease outbreaks through
restrictions, such as the EID eartag requirement, that the agency has
determined are necessary for efficient livestock tracing.
We also note that this final rule does not require producers to
purchase and affix EID eartags to their cattle as the only acceptable
official identification device or method to meet the official
identification requirements for interstate movement; the regulations
continue to list eartags as one of several forms of authorized official
identification, which also include tattoos and brands when accepted by
State officials in the sending and receiving States.
Several commenters stated that the proposed rule violates the Tenth
Amendment as certain States have codified into State law their own
options for animal identification.
The Tenth Amendment provides that ``powers not delegated to the
United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.'' Regulating
interstate commerce, which includes the interstate movement of animals,
is a power delegated to Congress as an enumerated power under the
Commerce Clause of the Constitution. Exercising this enumerated power
through the AHPA, Congress has delegated to the Secretary of
Agriculture the authority to restrict the movement in interstate
commerce of any animal or article necessary to prevent the introduction
into or dissemination within the United States of any pest or disease
of livestock. The Tenth Amendment does not refute APHIS' authority to
restrict the interstate movement of animals for this purpose and, in
turn, displace a State's exercise of its regulatory power.
Two commenters stated that this rulemaking violated the intent of
Article 1, Section 8, of the Constitution. One of these commenters
stated that the USDA was falsely asserting that Congress has delegated
and granted it broad powers which are implied, plenary, and inherent.
The commenter noted that Congress has not mandated an electronic animal
identification scheme, and therefore APHIS lacks the authority to
impose one.
We did not assert that Congress has granted the USDA ``broad powers
which are implied, plenary and inherent.'' Under the AHPA, Congress has
delegated authority to the Secretary of Agriculture to promulgate
regulations to prevent the introduction into the United States and the
dissemination within the United States of any pest or disease of
livestock. This rulemaking is consistent with Congress's clear,
intelligible directive to protect animal health because it is intended
to prevent the introduction and dissemination of livestock pests or
diseases by improving the existing ADT program. USDA has issued this
rulemaking based on Congress's grant of clear authority to it, not
based on some implied or vague powers. Additionally, electronic animal
identification represents a logical, modest update to the ADT program
that is within USDA's mandate to implement.
Two commenters stated that this rulemaking violates the Fourth
Amendment. One of these commenters stated that this was because
requiring EID eartags constituted ``unconstitutionally seizing the
cattle producers [sic] value-added information without compensation.''
The commenter also alleged that the rulemaking violates the Fifth
Amendment because the ``value-added information associated with the
mandatory EID eartags further constitutes the private property of the
owner of the cattle.''
The requirement for official EID tags does not involve seizing a
producer's value-added information. Some producers use EID eartags to
participate in value-added verification programs overseen by the AMS.
Producers may, but are not required, to use official EID eartags to
participate in these verification programs and, alternatively, may also
use 900-series tags. The premiums producers are paid for cattle
participating in these verification programs are a result of the
specific management practices required by said programs. While
information regarding such management practices may be correlated with
an animal's EID number, this information is kept in the hands of the
producer; the producer's possession or use of the information is not
interfered with at all, and, in any event, this information is not the
same as the information collected for animal disease traceability
purposes that is kept in State and Federal databases. Information
correlated with an animal's EID number kept in State and Federal
databases is limited to information necessary for disease tracing.
A commenter stated that this rulemaking violated Executive Orders
14005 and 14017 by requiring producers to purchase EID eartags
manufactured in China. Another commenter stated that this rulemaking
should adhere to Executive Order 14005 and be made in the United
States.
[[Page 39556]]
Executive Orders 14005 and 14017 apply only to Federal Government
purchases. APHIS abides by the Executive Orders and complies with the
Buy American Act (41 U.S.C. 8301-8303).
We also note that this rulemaking does not stipulate that producers
must purchase eartags made in a foreign country. APHIS approves
official EID tags by any manufacturer, foreign or domestic, that
fulfils the rigorous criteria listed in the OAIDS. Additionally, as
noted earlier, eartags are one of several forms of authorized official
identification. Producers who do not wish to use eartags may use
another form of authorized official identification, such as tattoos and
brands when accepted by State officials in the sending and receiving
States.
Cost and Fairness
Many commenters opposed the proposed rule because of their belief
that the cost of purchasing EID tags placed an undue financial burden
on producers, particularly small farmers and ranchers. Commenters also
claimed that these costs to producers would fuel consolidation in the
livestock industry.
We do not agree with these comments regarding the magnitude of
costs to the domestic cattle and bison industry, and do not think this
rulemaking will result in further consolidation of the cattle industry.
The commenters who raised these concerns often based them on the belief
that official identification would be required for all or most cattle
and bison regardless of whether they enter interstate commerce.
Official identification is not required for all cattle or bison. Under
the current regulations in Sec. 86.4(b), which this final rule does
not change, the following categories of cattle and bison are subject to
official identification requirements for interstate movement: all
sexually intact cattle and bison 18 months of age or over; all female
dairy cattle of any age and all male dairy cattle born after March 11,
2013; cattle and bison of any age used for rodeo or recreational
events; and cattle and bison of any age used for shows or exhibitions.
Cattle and bison are exempted from official identification requirements
if they are going directly to slaughter. Thus, large categories of
cattle, such as feeder cattle or cull cattle going to slaughter, are
not subject to the identification requirements. In addition, cattle and
bison only require official identification under the regulations if
they move interstate or are in Federal or State disease programs.
Accordingly, many small producers will be exempted because they never
move cattle interstate, so their cattle do not require official
identification.
While we acknowledge the commenters' concern over consolidation of
the cattle industry, we disagree that an EID tag requirement would
cause consolidation. Data from USDA's National Agricultural Statistics
Service reflect consolidation as a broader trend in the cattle industry
that is present in both States that have and States that have not
implemented a State-specific EID tag requirement.
That being said, we acknowledge that producers may at some point
have to assume costs associated with purchasing EID tags as a result of
this rulemaking. Accordingly, we have prepared a regulatory impact
analysis (RIA) that estimates aggregate annual costs to the domestic
cattle and bison industry as a result of the rule. The analysis
estimates, conservatively, that 11 million cattle and bison are tagged
with visual official identification per year to fulfill official
identification requirements under the regulations. This number
represents approximately 11 percent to 12 percent of the cattle and
bison in the domestic inventory. We estimate that these are the average
percentages of cattle that would be required to have EID tags instead
of visual-only tags each year under this rule. The cost is estimated to
be approximately $26.1 million, assuming no Federal funding is
provided. (APHIS has historically provided funding for EID eartags and
intends to continue doing so as long as funding is available. Funding
is discussed in greater detail later in this document.) This equates to
an average cost of $30.45 per cattle or bison operation each year; or
based on total industry cash receipts from 2021, approximately 2.5
cents per $100 (0.025 percent).
The RIA also articulates the benefits of increased traceability
that were previously identified in the economic analysis that
accompanied the 2013 final rule establishing the regulations,
particularly the foregone liabilities when traceability is not quick or
accurate, and delineates how EID furthers the aims of efficient and
accurate traceability that undergird the regulations. The RIA for this
final rule is available on Regulations.gov as a supporting document for
this final rule, as well as by contacting the individual listed below
FOR FURTHER INFORMATION CONTACT. For reasons discussed in the 2013
economic analysis and the RIA that accompanies this final rule, it has
been and continues to be APHIS' position that the benefits associated
with timely and accurate animal traceability significantly outweigh
costs to regulated entities.
Many commenters stated that the rule unfairly favors large
corporations over small producers. It was stated that small producers
would have to pay more to comply with the regulations than large
operations due to bulk discounts offered by EID tag manufacturers.
Other commenters stated that large corporations were favored because
they are allowed to use GINs to officially identify their animals.
The commenters are correct that many EID tag manufacturers
currently offer lower rates for EID tags bought in bulk. The
calculations for the average price of an EID tag in the RIA factor in
these price differences. As noted previously, most small producers will
not be affected by this rulemaking because they do not move their
cattle interstate. Small producers that are affected by this rulemaking
may consider creative ways to capitalize on bulk discounts for EID
tags, such as cooperative buying. These would be individual business
decisions based on producer's unique circumstances. We also note that,
while APHIS cannot commit to long-term funding for EID tags because the
availability of Federal funding in future fiscal years is dependent on
annual Congressional appropriations and USDA-APHIS budgetary
priorities, APHIS has provided these tags free of charge since 2020.
Funding for EID eartags is discussed in greater detail later in this
document.
This rulemaking does not change the regulations regarding the use
of GINs. Methods of official identification other than official eartags
are outside the scope of this rulemaking.
Some commenters stated that this rulemaking would force small
operations out of the livestock market and thus undermine the
resiliency of the nation's food system.
We disagree that an EID requirement undermines efforts to build and
maintain a resilient food supply. For the reasons discussed earlier in
this document, many small producers will not be affected by this
rulemaking. A resilient food supply relies on the health and wellbeing
of our nation's livestock, which is the intended outcome of an
effective and efficient ADT system.
Some commenters stated that this rulemaking is designed to benefit
export markets by making it easier for companies to ``ship products
around the world'' or by protecting international trade markets, at the
expense of small producers who will bear the cost of the rulemaking.
We acknowledge possible benefits to export markets and trade
associated
[[Page 39557]]
with domestic animal disease traceability and EID--these are referenced
in the RIA that accompanies this final rule. We disagree, however, that
this final rule is intended to directly benefit cattle and bison
exporters. This final rule pertains to interstate movement of cattle
and bison, not the export of cattle and bison, and foreign markets are
free to set their own import requirements. While it is true that many
of these requirements currently include EID, that is not within APHIS'
purview. Furthermore, options already exist for exporters to meet any
such requirements; many exporters currently use third-party
verification programs under the purview of AMS to comply with
traceability requirements of export markets.
Commenters stated that costs to producers extended beyond the cost
of EID tags, and included infrastructure such as EID readers, software,
and labor. A commenter stated that this rulemaking would require
additional labor for accredited veterinarians to enter data into a
database, the cost of which would be passed on to producers. It was
stated that our RIA was flawed because it did not take these costs into
account.
We disagree with the commenters. The official identification
requirement does not require the producer to have hardware (readers) or
software (computer systems). Readers and software are not required
because each EID tag also has a visual component. The tag number is
imprinted on the plastic shell containing the EID portion of the tag.
The tags can thus be used in the same manner as visual tags by
producers who do not wish to invest in tag-reading hardware and
software.
We disagree that this final rule requires producers to incur
additional labor costs related to application of tags because the
regulations already require the placement of official identification.
The EID requirement only changes the type of eartag that must be used
for cattle that require official identification and that are officially
identified using eartags. The labor involved in applying a metal NUES
eartag should not be any more burdensome than the labor involved in
applying an EID eartag.
Likewise, this final rule imposes no new requirement for accredited
veterinarians to enter data into a database. Accredited veterinarians
may continue collecting the information already required by the
regulations in their medical records in the same way they currently do,
so long as the records are retrievable when a disease outbreak occurs.
Costs passed on to the producer should only reflect the difference in
the cost of tags because this final rule does not require any
additional labor.
Some commenters stated that APHIS should acknowledge that EID tags
are meant to be read electronically and update the RIA to account for
the cost of readers.
APHIS disagrees that EID tags are meant to be read only
electronically. As explained above, EID tags must be readable both
electronically and visually. To ensure the visual readability of
eartags, the OAIDS requires that EID tags be readable from 30 inches
with 20/20 vision, while there was no readability standard for metal
NUES tags.
Two commenters stated that mandatory EID may increase corporate
control over the livestock industry by giving packers more information
about how animals are produced.
APHIS-approved official eartags only encode the 15-digit animal
identification number. They do not encode any producer information.
Many commenters noted that APHIS has provided funding for EID
eartags in the past and stated that the agency should commit to
continuing this funding. Some commenters specified that funding should
be provided for at least the first 2 years after the final rule's
implementation. Commenters also stated that APHIS should provide
funding for necessary equipment and related costs, such as readers,
data management systems, and labor.
Since 2020, APHIS has provided funding for EID eartags, as well as
readers and ear taggers. Since the availability of Federal funding in
future fiscal years is dependent on annual Congressional appropriations
and USDA-APHIS budgetary priorities, a long-term commitment to this
funding is not possible. We intend to continue to provide assistance as
long as funding is available. However, in the absence of Federal
funding, producers would have to assume costs associated with
purchasing EID tags. For this reason, we have prepared an assessment
that estimates annual aggregate costs to the domestic cattle and bison
industry associated with this rule.
As noted earlier, this final rule does not require producers or
livestock markets to have electronic reading equipment or additional
data management systems, because the official EID tags must be readable
visually as well as electronically. Producers may continue using EID
eartags the same way they currently use non-EID, visual-only eartags.
Finally, for the reasons discussed earlier in this document, we
disagree that this rulemaking will cause producers to incur additional
labor costs. The application of an EID eartag should not result in more
labor costs than the application of a non-EID eartag.
Two commenters stated that the USDA should continue funding States
via cooperative agreements. A commenter stated that funding for States
to support ADT infrastructure should be increased.
This final rule does not impact the ADT annual cooperative
agreements with States, Territories, or Tribes. We note that this
funding is separate from the additional funding that APHIS has provided
since 2020 to support EID tags and infrastructure. APHIS intends to
provide funding for EID eartags and infrastructure for as long as
funding is available, but we are unable to commit to multi-year funding
for the reasons discussed above.
Two commenters stated that the RIA was inaccurate in its statement
that the cost of tags would increase from $3.3 million annually (the
estimated cost of metal NUES tags) to $29.3 million annually (the
estimated cost of EID tags), as APHIS has been providing metal NUES
tags to producers at no cost.
The commenter is correct that APHIS has provided NUES eartags at no
cost to producers. The commenter fails to acknowledge, however, that
APHIS has also been providing EID tags at no cost to producers since
2020. The estimates in the RIA take into account that funding for
neither type of tag has been guaranteed in the past, nor can funding
for EID tags be guaranteed in the future, as this funding depends on
each year's Agency budget and competing disease priorities.
Two commenters stated that the estimates for the annual cost of EID
eartags in the RIA were flawed because they only accounted for costs to
animals currently being identified by non-EID tags. The commenters
stated that the estimated number of affected animals did not consider
animals currently tagged with EID tags, or animals that are required to
have official identification but are not in compliance with the
regulations.
Cattle and bison already identified with official EID eartags are
already in compliance with this final rule, and therefore would not
incur new expenses as a result of it. While we recognize that some
people may not comply with the current regulations regarding official
identification, we have no means of estimating their number. We also
note that people currently not in compliance with the regulations are
unlikely to begin complying as a result of this rulemaking, and
therefore would not
[[Page 39558]]
increase demand for official identification tags.
A commenter stated that the RIA does not include information about
the estimated economic impact for individual operations.
The commenter is incorrect. The RIA states that, assuming the
Federal Government does not provide tags free of charge in the future,
the average cost per operation to purchase EID eartags would range from
$26.24 to $29.45 for FDX eartags, and from $31.13 to $34.73 for HDX
eartags.
A commenter stated that our cost estimates did not consider costs
incurred for livestock moved interstate after purchased at an in-State
general auction market. The commenter asked whether the buyer would be
charged for the cost of eartags or be required to place official
eartags on the animals they purchased.
Under the current regulations in Sec. 86.4(b), which this final
rule does not change, cattle and bison that are required to have
official identification must be officially identified prior to
interstate movement unless they are exempted from the requirement for
official identification. Animal classes and movements that currently
require official identification will continue to require official
identification, while animal classes and movements exempted from the
official identification requirements will continue to be exempted.
A commenter stated that we should adjust the estimate of impacted
cattle in the RIA to account for the expanded definition of dairy
cattle.
We disagree with the commenter. APHIS has not expanded the
definition of dairy cattle. The change to the definition of dairy
cattle is a codification of guidance that APHIS has consistently given
to producers and State animal health officials, and not a change in
policy. Beef/dairy cross breeds should already be officially
identified. We have no indication of noncompliance or controversy
surrounding this policy. Assuming regulated parties are in compliance,
beef/dairy crosses are already accounted for in our estimate of 11
million impacted cattle.
We acknowledge the possibility that there may be cattle producers
that did not consider their beef/dairy cross breeds to be dairy cattle,
and were alerted to our interpretation of the definition of dairy
cattle to encompass beef/dairy cross breeds by this rulemaking.
However, as we have no indicators of widespread noncompliance, we
expect this scenario to be rare and expect the number of cattle to be
affected by it to be de minimis.
A commenter asked why the RIA did not report on tracing exercises
using branded cattle.
While the regulations allow the use of brands to fulfil the
requirements for official identification if agreed upon by sending and
receiving States, brands do not uniquely identify an animal and are not
intended for animal traceability. Brands are not unique outside of
local areas, are currently only used in 14 States, and are not
systematically recorded in national databases. For these reasons,
tracing exercises are restricted to animals identified with AIN 840-
numbered tags and NUES tags.
A commenter suggested further cost-benefit analysis to assess the
impact on cattle and bison producers while ensuring maximum expansion
of ADT capability.
The commenter did not specify what they believe our analysis is
lacking. We believe the RIA comprehensively assesses the costs and
benefits of this rule.
Some commenters disagreed with our estimation that the number of
impacted cattle would be 11 million. A commenter stated that,
previously, the USDA estimated that the final rule would impact 30
million cattle that cross State lines annually. Another commenter
stated that many State identification programs are tied to the Federal
system, and therefore even cattle that do not cross State lines would
be impacted by this rulemaking.
The commenter is mistaken that we previously estimated this
rulemaking would impact 30 million cattle, and the commenter provides
no source for this figure. Our estimate of 11 million cattle is based
on the number of official identification tags that have been used in
previous years. Many animals that move interstate are exempt from
official identification requirements, such as beef cattle under 18
months of age, and animals going to slaughter or to an approved
livestock market.
Regarding the concern about State identification programs, APHIS is
unaware of any intrastate movement requirements that may mimic Federal
regulations. Moreover, intrastate movement regulations are beyond our
jurisdiction.
A commenter stated that the RIA uses outdated 15-year-old data to
determine that many small entities would not be affected because most
small entities market through local auctions. The commenter stated that
this is no longer necessarily the case, as small entities have
increased their use of online livestock video auctions and alternative
livestock marketing channels that would require the use of an EID tag.
The commenter also stated that market consolidation has reduced the
available number of livestock auctions, forcing some small producers to
market outside their state.
The RIA uses NAHMS data from 2008 as well as from 2017 to determine
that small operations are less likely to move cattle interstate. Data
from the 2008 NAHMS report indicated that 82 percent to 88 percent of
beef cattle were marketed through general auction markets. These
markets tend to be in-state auctions or out-of-state APHIS approved
markets, for which official identification is not required. Data from
the 2017 NAHMS report further indicated that small operations were most
likely to use auction markets, while larger producers used auctions as
well as other marketing channels. Although the published literature on
small sized farms moving cattle interstate is scarce, we believe the
data from these reports are still applicable and relevant. We are not
aware of any significant change in marketing practices for small
producers.
Furthermore, we disagree with the commenter that small producers
are forced to market out of State due to market consolidation, as the
number of APHIS-approved livestock markets has increased steadily each
year. In 2013, when the ADT rule was implemented, there were 703 active
APHIS-approved markets; today there are 1,310.
A commenter stated that a calculated benefit of $30 million per
year is inaccurate, as the calculation is based on incorrect
assumptions that EID eartags will reduce the time to detect an
outbreak, reduce herd surveillance costs, improve practices that
identify diseased cattle, and reduce the probability of countries
imposing trade restrictions because of a disease outbreak in cattle.
APHIS would like to clarify the commentor's misunderstanding.
Thirty million dollars was our estimate of the additional cost of EID
tags; we assessed, but did not quantify, expected benefits.
Although use of EID would not reduce the time it takes to initially
detect a disease or conduct surveillance, EID reduces the time to find
diseased and exposed animals. APHIS disease investigations are often
concluded through quarantine and testing or depopulation of cattle
herds when the animal of interest is not identifiable, which incurs
costs for livestock producers as well as APHIS. As explained in the
RIA, when outbreaks of livestock diseases occur, the use of EID eartags
can help limit their size and
[[Page 39559]]
scope, thus reducing the number of animals that are depopulated, the
impact to producers and communities, and the probability that trade
restrictions are imposed. Additionally, rapid containment of foreign
animal diseases and identification of affected, exposed, and vaccinated
animals will expedite the return of export markets, should they close
in the event of a disease outbreak.
A commenter stated that, because only approximately eight
manufacturers have had their EID eartags approved for official use by
APHIS, this rulemaking creates an oligopoly of eartag manufacturers on
which producers are forced to rely.
This rulemaking does not in any way restrict new manufacturers from
applying for approval of their eartags for use as official
identification. In fact, changes proposed in this rulemaking streamline
the approval process for new EID devices in order to encourage new
manufacturers to enter the market. APHIS will continue to approve
official identification tags from new companies that are in compliance
with our regulations.
A commenter stated that producers need assurance that eartags and
related infrastructure will be available at a reasonable price.
APHIS will continue to approve eartags for official identification.
As noted earlier, this final rule does not require the use of
infrastructure, such as readers, because tags are required to have a
visual component.
A commenter asked us to include an assessment of biometric tools
for official identification that have the potential to reduce costs per
head of cattle.
The RIA includes in its assessment the types of EID eartags that
are currently approved for use, which include FDX and HDX RFID tags.
APHIS would consider any type of alternate EID methods that are
supported by credible research.
Two commenters stated that future new EID technologies mentioned in
the proposed rule could result in higher costs for producers.
The RIA estimated costs to producers based on EID technology
available and approved for use today, which is currently limited to
RFID. In the proposed rule, we stated that we refer to EID, rather than
RFID, tags in the regulations in order to allow for other
electronically readable technology, should it become available in the
future. Just as referring to EID would not limit official eartags to
the technology available today, it would also not limit official
eartags to a hypothetical higher-cost technology available in the
future. Maintaining technological neutrality in the regulations
provides flexibility for the regulated community to choose the
technology that best meets their individual needs, cost being one
consideration.
Some commenters stated that ADT raises fear of market manipulation
by multinational packing corporations or the government.
The commenters did not elaborate on their specific concerns
regarding market manipulation and provided no supporting evidence of
this hypothetical situation. As discussed earlier in this document,
APHIS protects personally identifiable information (PII) and
proprietary business information in its recordkeeping.
A commenter stated that the requirement for ICVIs is an added
expense.
The commenter is incorrect. Cattle and bison to which official
identification requirements apply are already required to be
accompanied by an ICVI or alternate movement document before moving
interstate. We did not propose to substantively change any regulations
pertaining to ICVIs. Rather, we proposed to make an editorial change to
the definition of ICVIs to account for the use of electronic ICVIs in
addition to paper ones.
A commenter stated that this rulemaking will result in the
elimination of incentive programs that encourage producers to adopt
EID, which may have been the only way some producers could afford the
technology.
We believe that the ``incentive programs'' to which the commenter
is referring are the verification programs overseen by AMS. We disagree
that this rulemaking will necessarily eliminate these verification
programs. Verification programs can fulfill trading partners'
requirements for traceability from birth to slaughter as well as
additional recordkeeping requirements for exported cattle. Because the
current regulations and this rulemaking do not fulfil these
requirements, we expect continued need for verification programs.
Miscellaneous
There were a number of comments that did not fall into any of the
categories listed above.
A commenter asked for clarification on the meaning of preemption
language in Sec. 86.8 and the preemption language mentioned in the
proposed rule relevant to Executive Order 12899 (sic).
Section 86.8 provides that States and Tribes may not specify an
official identification device or method for interstate movement if the
regulations allow for multiple devices or methods, nor may a receiving
State or Tribe impose requirements that would require the shipping
State or Tribe to develop a particular type of system or alter an
existing system in order to meet the requirements. There was no
Executive Order 12899 language in the proposed rule; however, we
believe the commenter is referring to Executive Order 12988, which was
referenced, and transposed the numbers. The 12988 language in the
preamble of the proposed rule, in contrast, has the effect of stating
that, if finalized, State laws that conflict with the specific
provisions of this rulemaking would be preempted. For example, a
State's animal identification regulations could not continue to allow
for non-EID forms of official identification of cattle and bison that
are subject to the ADT regulations.
We emphasize that the regulations in part 86 apply only to
interstate movement; States may develop their own official
identification requirements for intrastate movement that apply after an
animal arrives from a shipping State or may otherwise impose in-State
requirements for the cattle once the movement has occurred.
The same commenter asked whether a State could impose official
identification importation requirements for classes of animals
otherwise exempt in the ADT rule.
The final rule \16\ that established Sec. 86.8 indicated that
States may require the official identification of classes of animals
that are exempt under our regulations, provided that the receiving
State's requirement does not require the shipping State to develop a
particular type of system or alter an existing system.
---------------------------------------------------------------------------
\16\ See footnote 1.
---------------------------------------------------------------------------
The same commenter asked whether a State could restrict the types
of official identification devices required for imported animals when
the ADT rule permits additional approved methods of identification for
the species, such as restricting the use of GINs for the movement of
pigs and instead requiring individual animal IDs. The commenter asked
us to amend the regulations to allow a State to impose these additional
requirements if they are not currently permissible.
Because the current regulations allow for group or lot
identification as a means of official identification, restricting the
use of GINs and requiring individual animal ID for pigs, or cattle or
bison as applicable to this rulemaking, is prohibited under Sec. 86.8.
[[Page 39560]]
Amending Sec. 86.8 as requested is outside the scope of this
rulemaking, and one of the amendments requested by the commenter goes
against the stated aims of the ADT program.
Finally, the same commenter asked us to explain the enabling
legislation for Sec. 86.8.
The enabling legislation for Sec. 86.8 is the AHPA.
Two commenters stated that this rulemaking would reduce the speed
of commerce. Conversely, another commenter stated that EID allows for
the collection of animal movement data at the speed of commerce.
We disagree with the commenters who stated the rule would reduce
the speed of commerce. EID and electronic records have the potential to
increase the efficiency and speed of routine operations in the cattle
and bison industry. EID tags allow staff to read animals'
identification numbers without having to restrain or handle the cattle
or bison. For cattle or bison requiring ICVIs, electronic tags also
allow veterinarians to rapidly and accurately complete health
certificates and movement documentation without slowing the speed of
commerce.
One commenter asked that we amend Sec. 86.5(c)(7)(i) to require
that the official identification numbers of cattle and bison are
recorded during the transfer from an approved livestock facility
directly to a recognized slaughtering establishment.
We will consider the commenters' suggestion; however, this is
outside the scope of this rulemaking.
One commenter asked us to state that forms used for interstate
poultry movement must meet the same accuracy and clarity criteria that
pertain to ICVIs for poultry and other species.
We will consider the commenters' suggestion; however, this is
outside the scope of this rulemaking.
One commenter asked us to create a standardized ICVI form.
This is outside the scope of this rulemaking. We note that all ICVI
forms are required to contain the same information, which is listed
under the definition of interstate certificate of veterinary inspection
(ICVI) in Sec. 86.1.
One commenter stated that this rulemaking could reduce the use of
the brucellosis vaccine because the use of EID tags would double the
cost of brucellosis vaccination.
APHIS requires brucellosis vaccination for cattle in the Greater
Yellowstone Area. Cattle that are vaccinated for brucellosis are
required to have official identification and currently use metal
official NUES tags. While we acknowledge that EID tags are more
expensive than metal NUES tags, and discuss these differences in cost
in the RIA, we disagree with, and the commenter provides no evidence to
support, the speculation that these costs would discourage compliance
with the requirement for brucellosis vaccination.
Some commenters asked us to remove the requirement to tattoo
animals that receive the brucellosis vaccine because correct placement
of an EID eartag makes tattoo placement difficult.
We disagree with the commenters that EID tag placement interferes
with brucellosis tattoo placement. While official EID tags may be
placed in either ear, the recommended placement is the left ear to
avoid interference with the brucellosis tattoo, which is required on
the right ear.
One commenter stated that additional education regarding proper tag
application and retention for veterinarians and producers is necessary.
APHIS agrees that education assists in proper tag application and
increased tag retention. We support education through efforts such as
cooperative agreements and outreach and intend to continue such efforts
as funding allows.
One commenter asked for guidance stating that exports from the
United States to Canada will clearly state requirements for use of an
approved indicator with the International Organization for
Standardization (ISO) 11784.
The final rule does not pertain to the export of livestock.
Requirements for exported livestock are found in 9 CFR part 91.
One commenter asked us to establish performance standards for the
retention of backtags referenced in Sec. 86.4(b)(1)(i)(C).
Backtags are not methods of official identification but are
mentioned in Sec. 86.4(b)(1)(i)(C), in the context of an exemption for
cattle and bison that are moved interstate from the requirement of
official identification if certain conditions are met. The existing
regulations require that backtags used to fulfil this exemption must
``ensure that the identity of the animal is accurately maintained until
tagging.'' We believe this adequately addresses the required
performance of backtags used in this context.
Two commenters stated that the use of alternative movement records
should be increased, and that these alternative movement records could
be created by a veterinarian or their designee, but APHIS should not
require an inspection or attestation of health by a veterinarian.
The existing regulations in Sec. 86.5(a) already provide for
alternatives to the ICVI for animals moving interstate. Alternate
documentation requires an agreement between both shipping and receiving
States to be considered official movement documentation. The current
regulations do not specify that an alternative movement document
requires an inspection or attestation of health by a veterinarian.
Two commenters stated that the USDA and States should target
enforcement of ADT requirements beyond fixed-facility livestock auction
markets to avoid incentivizing direct selling outside of markets.
We do not believe this rulemaking will incentivize direct selling
outside of markets. Compliance with the regulations in 9 CFR part 86 is
required for animals subject to these regulations, regardless of
whether the animal is sold through a livestock market or a private
sale. Accredited veterinarians responsible for inspection and
interstate movement of animals are subject to the same requirements and
face the same sanctions for noncompliance, regardless of whether they
work for or from a market or private treaty sale. Accredited
veterinarians must submit copies of the documentation (ICVI or
alternate movement documents) to the origin and destination State
official within 7 days of inspecting the animal, and they must complete
this documentation accurately and completely. Accredited veterinarians
that are non-compliant are subject to sanctions including monetary
penalties, loss of accreditation, and, in some cases, criminal
penalties.
A commenter asked whether there will be civil or criminal penalties
for not adhering to the requirements of the final rule.
The AHPA lists criminal and civil penalties relevant to violating
the requirements of the regulations in section 8313. Changes to the
regulations do not impact the Act.
Some commenters stated that this rulemaking could subject cattle
producers to liability, should the animal bearing their EID eartag
contract a disease after the animal is sold or should food safety
issues arise in meatpacking plants.
Under this rulemaking, producers are not liable for disease
infection after an animal leaves their premises. The EID requirement
thus has no known implications for producer liability.
One commenter claimed that the reason behind requiring EID for
eartags is the Global Roundtable for Sustainable Beef.
The commenter provided no evidence to support this claim. As
explained in the proposed rule and earlier in this document, the
purpose of this action is
[[Page 39561]]
to improve our animal disease traceability program's ability to trace
animals accurately and rapidly in order to aid us in disease response.
Several commenters requested that APHIS seek equivalency from
trading partners by requiring imported cattle to have EID.
The scope of this rulemaking is limited to requirements for
domestic cattle in interstate commerce. New requirements for imported
cattle would require a separate rulemaking.
Some commenters stated that the ADT program needs to be compatible
with the general traceability principles of the World Organization for
Animal Health (WOAH).
We are unsure of what specific principles the commenters are
referring to. However, we note that, as a WOAH member country, the
United States contributes to development of, and complies with, the
guidelines that the member countries develop.
Finally, we note that we are making non-substantive editorial
changes to the OAIDS to improve clarity, readability, and accuracy.
This includes changes such as reordering information, removing
duplicative information, and removing broken links. It also includes
editing to a paragraph explaining which criteria manufacturers must
meet for low-frequency devices. The edits remove a sentence stating
that substantial sales data or approval in another country may be
considered in lieu of International Committee on Animal Recording's
(ICAR) materials/environmental testing. We are making this edit because
sales data or approval in another country may not be an adequate
substitute for ICAR testing, and we do not have a standard for what
``substantial sales data'' means. The revised OAIDS is published
alongside this final rule.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with the
changes discussed in this document.
Executive Orders 12866, 13563, and Regulatory Flexibility Act
This final rule has been determined to be significant for the
purposes of Executive Order 12866, as amended by Executive Order 14094,
``Modernizing Regulatory Review,'' and, therefore, has been reviewed by
the Office of Management and Budget.
We have prepared an economic analysis for this final rule. The
economic analysis provides a cost-benefit analysis, as required by
Executive Orders 12866 and 13563, which direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility. The
economic analysis also examines the potential economic effects of this
final rule on small entities, as required by the Regulatory Flexibility
Act. The economic analysis is summarized below. Copies of the full
analysis are available on the Regulations.gov website (see footnote 6
in this document for a link to Regulations.gov) or by contacting the
person listed under FOR FURTHER INFORMATION CONTACT.
We are amending the animal disease traceability regulations to
recognize only eartags that are both visually and electronically
readable as official eartags for use for interstate movement of cattle
and bison that are covered under the regulations. We are also
clarifying certain record retention and record access requirements.
These changes will enhance the ability of State, Federal, and private
veterinarians, and livestock producers, to quickly respond to high-
impact diseases currently existing in the United States, as well as
foreign animal diseases that threaten the viability of the U.S. cattle
and bison industries. The benefits of animal disease traceability
include enhancing the ability of the United States to regionalize and
compartmentalize animal health issues, minimizing the costs of disease
outbreaks, and enabling the reestablishment of foreign and domestic
market access with minimum delay following an animal disease event.
APHIS conducted a cost-benefit analysis to determine how the
transition to electronic identification (EID) tags will affect the
cattle and bison industries. Our analysis suggests that approximately
11 million cattle are currently tagged with official non-EID eartags
per year. The rule will not change the number of cattle tagged, but it
will increase the estimated average annual cost of purchasing tags by
approximately $26.1 million dollars per year, or $30.39 per cattle or
bison operation. As noted in APHIS' cost-benefit analysis, the cost of
purchasing new tags is the only additional costs APHIS has determined
will be imposed on producers, regardless of whether they currently own
electronic reading equipment.
We began soliciting comments concerning the proposal for 60 days,
ending March 20, 2023. In response to several requests by commenters,
we extended the comment period by 30 days, to April 19, 2023. We
received 2,006 comments from industry groups, producers, veterinarians,
State departments of agriculture, and individuals. While many of these
comments were in support of the proposed rule, we did receive concerns
regarding the economic impacts of this rule. Comments included concerns
regarding the potential additional costs of having to adhere to the new
EID technology, beyond the cost of the EID tags, along with concerns
that this rulemaking will disproportionately impact small businesses.
We have evaluated these concerns carefully and, while the new EID tags
will increase the costs of identifying certain cattle and bison as
outlined in this analysis, we have found the other concerns to be
unsubstantiated, which we discuss in the cost section of this analysis.
Radio frequency identification (RFID) technology, a type of
electronic identification, has been available in the livestock industry
for many years. APHIS has evaluated the cost structure of current RFID
technologies, commonly known as FDX and HDX. Both technologies work
well and have similar qualities. This report describes the cost
structure of these EID eartags. We provide 10 years of historic
population levels for cattle and bison in order to provide the reader
with a range of cost estimates based upon a fluctuating cattle and
bison population.
EID eartags are a vital component to efficient and accurate
traceability of cattle and bison. It benefits stakeholders by
significantly reducing the numbers of animals and response time
involved in a disease investigation.
One of the most significant benefits of the rule will be the
enhanced ability of the United States to regionalize and
compartmentalize animal disease outbreaks. Regionalization is the
concept of separating subpopulations of animals to maintain a specific
health status in one or more disease-free regions or zones. This risk-
based process can help to mitigate the adverse economic effects of a
disease outbreak. Traceability of animals is necessary to form these
zones that facilitate reestablishment of foreign and domestic market
access with minimum delay in the wake of an animal disease event. The
use of EID eartags can significantly reduce the amount of time it takes
animal health officials to complete a trace investigation, which
involves knowing where diseased and potentially exposed animals are,
and where they have been. Animals that may have come
[[Page 39562]]
in contact with an affected animal can number in the thousands or tens
of thousands. Transitioning from visual to electronic identification
devices may significantly reduce the time it takes animal health
officials conducting a trace to scan animals in a herd during a disease
response. The more efficiently and effectively animal health officials
can complete a trace, the faster we can regionalize and
compartmentalize animal disease outbreaks in order to mitigate adverse
economic impacts. Having an EID system in place will, therefore,
minimize not only the spread of disease but also the trade impacts an
outbreak may have.
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 2 CFR chapter IV.)
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 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.
Executive Order 13175
This final rule has been reviewed in accordance with the
requirements of Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments.'' Executive Order 13175 requires
Federal agencies to consult and coordinate with Tribes on a government-
to-government basis on policies that have tribal implications,
including regulations, legislative comments or proposed legislation,
and other policy statements or actions that have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
APHIS has determined that Executive Order 13175 is applicable to
this rulemaking and that therefore consultation is required, as this
final rule may affect one or more Tribes and the cost associated with
managing cattle and bison herds. To raise awareness of this rulemaking,
APHIS hosted an informational webinar to Tribal nations on October 27,
2021, to notify Tribes of this rulemaking and solicit consultation. On
May 18, 2022, the APHIS Office of National Tribal Liaison sent letters
to all 574 Tribal Leaders inviting them to attend an upcoming Tribal
listening session. The listening session was held on June 23, 2022.
Sixteen individuals attended, and we did not receive feedback that
substantively affected the development of this rulemaking. APHIS will
work with the Office of Tribal Relations to ensure that additional
outreach occurs in 2024. If a Tribe requests consultation, APHIS will
coordinate with the Office of Tribal Relations to ensure that
meaningful consultation occurs.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the reporting, recordkeeping, and
third-party disclosure requirements described in this final rule are
currently approved by the Office of Management and Budget (OMB) under
OMB control number 0579-0327. The categories of burden and numbers
haven't changed as a result of this rule. The last approval from 2021
(https://www.regulations.gov/document/APHIS-2021-0056-0001) is still
accurate.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the EGovernment Act to promote the use of the internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this final rule, please contact Mr. Joseph Moxey,
APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2533.
Congressional Review Act
Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (also known as the Congressional Review Act, 5
U.S.C. 801 et seq.) OIRA has determined that this rule does not meet
the criteria set forth in 5 U.S.C. 804(2).
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104.4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, tribal
governments, and the private sector. Under section 101 of the UMRA,
APHIS generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year. When such a statement is needed for a
rule, section 205 of the UMRA generally requires APHIS to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, more cost-effective, or least burdensome alternative that
achieves the objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of title II of the UMRA) that may result in expenditures by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. Thus, this
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
List of Subjects
9 CFR Part 71
Animal diseases, Livestock, Poultry and poultry products,
Quarantine, Reporting and recordkeeping requirements, Transportation.
9 CFR Part 77
Animal diseases, Bison, Cattle, Reporting and recordkeeping
requirements, Transportation, Tuberculosis.
9 CFR Part 78
Animal diseases, Bison, Cattle, Quarantine, Reporting and
recordkeeping requirements, Swine, Transportation.
9 CFR Part 86
Animal diseases, Bison, Cattle, Livestock, Reporting and
recordkeeping requirements.
For the reasons stated in the preamble, APHIS amends 9 CFR parts
71, 77, 78, and 86 as follows:
PART 71--GENERAL PROVISIONS
0
1. The authority citation for part 71 continues to read as follows:
Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
0
2. Amend Sec. 71.1 by revising the definition of ``Official eartag''
to read as follows:
Sec. 71.1 Definitions.
* * * * *
Official eartag. An identification tag approved by APHIS that bears
an official identification number for individual animals. The design,
size, shape, color, and other characteristics of the official eartag
will depend on the needs of the users, subject to the
[[Page 39563]]
approval of the Administrator. The official eartag must be tamper-
resistant and have a high retention rate in the animal.
* * * * *
PART 77--TUBERCULOSIS
0
3. 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
4. Amend Sec. 77.2, by revising the definitions of ``Interstate
certificate of veterinary inspection (ICVI)'' and ``Official eartag''
to read as follows:
Sec. 77.2 Definitions.
* * * * *
Interstate certificate of veterinary inspection (ICVI). An official
document issued by a Federal, State, Tribal, or accredited veterinarian
certifying the inspection of animals in preparation for interstate
movement.
(1) The ICVI must show:
(i) The species of animals covered by the ICVI;
(ii) The number of animals covered by the ICVI;
(iii) The purpose for which the animals are to be moved;
(iv) The address at which the animals were loaded for interstate
movement;
(v) The address to which the animals are destined; and
(vi) The names of the consignor and the consignee, and their
addresses if different from the address at which the animals were
loaded or the address to which the animals are destined.
(vii) Additionally, unless the species-specific requirements for
ICVIs provide an exception, the ICVI must list the official
identification number of each animal, except as provided in paragraph
(2) of this definition, or group of animals moved that is required to
be officially identified, or, if an alternative form of identification
has been agreed upon by the sending and receiving States, the ICVI must
include a record of that identification. If animals moving under a GIN
also have individual official identification, only the GIN must be
listed on the ICVI. An ICVI may not be issued for any animal that is
not officially identified, if official identification is required. If
the animals are not required by the regulations to be officially
identified, the ICVI must state the exemption that applies (e.g., the
cattle and bison do not belong to one of the classes of cattle and
bison to which the official identification requirements of this part
apply). If the animals are required to be officially identified but the
identification number does not have to be recorded on the ICVI, the
ICVI must state that all animals to be moved under the ICVI are
officially identified.
(2) As an alternative to recording individual animal identification
on an ICVI, if agreed to by the receiving State or Tribe, another
document may be attached to provide this information, but only under
the following conditions:
(i) The document must be a State form or APHIS form that requires
individual identification of animals, or a printout of official
identification numbers generated by computer or other means;
(ii) A legible copy of the document must be attached to the
original and each copy of the ICVI;
(iii) Each copy of the document must identify each animal to be
moved with the ICVI. The document must not contain any information
pertaining to other animals; and
(iv) The following information must be included in the
identification column on the original and each copy of the ICVI:
(A) The name of the document; and
(B) Either the unique serial number on the document or both the
name of the person who prepared the document and the date the document
was signed.
* * * * *
Official eartag. An identification tag approved by APHIS that bears
an official identification number for individual animals. The design,
size, shape, color, and other characteristics of the official eartag
will depend on the needs of the users, subject to the approval of the
Administrator. The official eartag must be tamper-resistant and have a
high retention rate in the animal.
* * * * *
PART 78--BRUCELLOSIS
0
5. The authority citation for part 78 continues to read as follows:
Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
0
6. Amend Sec. 78.1 by revising the definitions of ``Dairy cattle'',
``Interstate certificate of veterinary inspection (ICVI)'', and
``Official eartag'' to read as follows:
Sec. 78.1 Definitions.
* * * * *
Dairy cattle. All cattle, regardless of age or sex or current use,
that are of a breed(s) or offspring of a breed used to produce milk or
other dairy products for human consumption, including, but not limited
to, Ayrshire, Brown Swiss, Holstein, Jersey, Guernsey, Milking
Shorthorn, and Red and Whites.
* * * * *
Interstate certificate of veterinary inspection (ICVI). An official
document issued by a Federal, State, Tribal, or accredited veterinarian
certifying the inspection of animals in preparation for interstate
movement.
(1) The ICVI must show:
(i) The species of animals covered by the ICVI;
(ii) The number of animals covered by the ICVI;
(iii) The purpose for which the animals are to be moved;
(iv) The address at which the animals were loaded for interstate
movement;
(v) The address to which the animals are destined; and
(vi) The names of the consignor and the consignee and their
addresses if different from the address at which the animals were
loaded or the address to which the animals are destined.
(vii) Additionally, unless the species-specific requirements for
ICVIs provide an exception, the ICVI must list the official
identification number of each animal, except as provided in paragraph
(2) of this definition, or group of animals moved that is required to
be officially identified, or, if an alternative form of identification
has been agreed upon by the sending and receiving States, the ICVI must
include a record of that identification. If animals moving under a GIN
also have individual official identification, only the GIN must be
listed on the ICVI. An ICVI may not be issued for any animal that is
not officially identified, if official identification is required. If
the animals are not required by the regulations to be officially
identified, the ICVI must state the exemption that applies (e.g., the
cattle and bison do not belong to one of the classes of cattle and
bison to which the official identification requirements of this part
apply). If the animals are required to be officially identified but the
identification number does not have to be recorded on the ICVI, the
ICVI must state that all animals to be moved under the ICVI are
officially identified.
(2) As an alternative to recording individual animal identification
on an ICVI, if agreed to by the receiving State or Tribe, another
document may be attached to provide this information, but only under
the following conditions:
(i) The document must be a Tribal or State form or APHIS form that
requires individual identification of animals, or a printout of
official identification numbers generated by computer or other means;
(ii) A legible copy of the document must be attached to the
original and each copy of the ICVI;
(iii) Each copy of the document must identify each animal to be
moved with the ICVI. The document must not
[[Page 39564]]
contain any information pertaining to other animals; and
(iv) The following information must be included in the
identification column on the original and each copy of the ICVI:
(A) The name of the document; and
(B) Either the unique serial number on the document or both the
name of the person who prepared the document and the date the document
was signed.
* * * * *
Official eartag. An identification tag approved by APHIS that bears
an official identification number for individual animals. The design,
size, shape, color, and other characteristics of the official eartag
will depend on the needs of the users, subject to the approval of the
Administrator. The official eartag must be tamper-resistant and have a
high retention rate in the animal.
* * * * *
PART 86--ANIMAL DISEASE TRACEABILITY
0
7. The authority citation for part 86 continues to read as follows:
Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
0
8. Amend Sec. 86.1 by:
0
a. Revising the definitions of ``Approved tagging site'', ``Dairy
cattle'', and ``Interstate certificate of veterinary inspection
(ICVI)'';
0
b. Adding in alphabetical order the definition for ``Official Animal
Identification Device Standards (OAIDS)'';
0
c. Revising the definition of ``Official eartag''; and
0
d. Adding an OMB citation at the end of the section.
The revisions and additions read as follows:
Sec. 86.1 Definitions.
* * * * *
Approved tagging site. A premises, authorized by APHIS, State, or
Tribal animal health officials, where livestock without official
identification may be transferred to have official identification
applied on behalf of their owner or the person in possession, care, or
control of the animals when they are brought to the premises.
* * * * *
Dairy cattle. All cattle, regardless of age or sex or current use,
that are of a breed(s) or offspring of a breed used to produce milk or
other dairy products for human consumption, including, but not limited
to, Ayrshire, Brown Swiss, Holstein, Jersey, Guernsey, Milking
Shorthorn, and Red and Whites.
* * * * *
Interstate certificate of veterinary inspection (ICVI). An official
document issued by a Federal, State, or Tribal government, or an
accredited veterinarian, certifying the inspection of animals in
preparation for interstate movement.
(1) The ICVI must show:
(i) The species of animals covered by the ICVI;
(ii) The number of animals covered by the ICVI;
(iii) The purpose for which the animals are to be moved;
(iv) The address at which the animals were loaded for interstate
movement;
(v) The address to which the animals are destined; and
(vi) The names of the consignor and the consignee and their
addresses if different from the address at which the animals were
loaded or the address to which the animals are destined.
(vii) Additionally, unless the species-specific requirements for
ICVIs provide an exception, the ICVI must list the official
identification number of each animal, except as provided in paragraph
(2) of this definition, or group of animals moved that is required to
be officially identified, or, if an alternative form of identification
has been agreed upon by the sending and receiving States, the ICVI must
include a record of that identification. If animals moving under a GIN
also have individual official identification, only the GIN must be
listed on the ICVI. An ICVI may not be issued for any animal that is
not officially identified if official identification is required. If
the animals are not required by the regulations to be officially
identified, the ICVI must state the exemption that applies (e.g., the
cattle and bison do not belong to one of the classes of cattle and
bison to which the official identification requirements of this part
apply). If the animals are required to be officially identified but the
identification number does not have to be recorded on the ICVI, the
ICVI must state that all animals to be moved under the ICVI are
officially identified.
(2) As an alternative to recording individual animal identification
on an ICVI, if agreed to by the receiving State or Tribe, another
document may be attached to provide this information, but only under
the following conditions:
(i) The document must be a State form or APHIS form that requires
individual identification of animals, or a printout of official
identification numbers generated by computer or other means;
(ii) A legible copy of the document must be attached to the
original and each copy of the ICVI;
(iii) Each copy of the document must identify each animal to be
moved with the ICVI. The document must not contain any information
pertaining to other animals; and
(iv) The following information must be included in the
identification column on the original and each copy of the ICVI:
(A) The name of the document; and
(B) Either the unique serial number on the document or both the
name of the person who prepared the document and the date the document
was signed.
* * * * *
Official Animal Identification Device Standards (OAIDS). A document
providing further information regarding the official identification
device recordkeeping requirements of this part, and technical
descriptions, specifications, and details under which APHIS would
approve identification devices for official use. Updates or
modifications to the Standards document will be announced to the public
by means of a notice published in the Federal Register.
Official eartag. An identification tag approved by APHIS that bears
an official identification number for individual animals. The design,
size, shape, color, and other characteristics of the official eartag
will depend on the needs of the users, subject to the approval of the
Administrator. The official eartag must be tamper-resistant and have a
high retention rate in the animal.
* * * * *
(Approved by the Office of Management and Budget under control
number 0579-0327)
0
9. Revise Sec. 86.2 to add an OMB citation at the end of the section
to read as follows:
Sec. 86.2 General requirements for traceability.
* * * * *
(Approved by the Office of Management and Budget under control
number 0579-0327)
0
10. Revise Sec. 86.3 to read as follows:
Sec. 86.3 Recordkeeping requirements.
(a) Any State, Tribe, accredited veterinarian, or other person or
entity who distributes official identification devices must maintain
for 5 years a record of the names and addresses of anyone to whom the
devices were distributed. Official identification device distribution
records must be entered by the person distributing the devices into the
Tribal, State, Federal, or other database acceptable to each government
entity. Additional guidance on meeting these recordkeeping requirements
is found in the OAIDS.
(b) Records of official identification devices applied by a
federally
[[Page 39565]]
accredited veterinarian to a client animal must be kept in a readily
accessible record system.
(c) Approved livestock facilities must keep any ICVIs or alternate
documentation that is required by this part for the interstate movement
of covered livestock that enter the facility on or after March 11,
2013. For poultry and swine, such documents must be kept for at least 2
years, and for cattle and bison, sheep and goats, cervids, and equids,
5 years.
(d) Records required under paragraphs (a) through (c) of this
section must be maintained by the responsible person or entity and must
be of sufficient accuracy, quality, and completeness to demonstrate
compliance with all conditions and requirements under this part. During
normal business hours, APHIS must be allowed access to all records, to
include visual inspection and reproduction (e.g., photocopying, digital
reproduction). The responsible person or entity must submit to APHIS
all reports and notices containing the information specified within 48
hours of receipt of request, or earlier if warranted by an emergency
disease response.
(Approved by the Office of Management and Budget under control
number 0579-0327)
0
11. Amend Sec. 86.4 by:
0
a. Revising paragraphs (a) introductory text and (a)(1)(i);
0
b. In paragraphs (a)(2)(i) and (iv), removing the word ``equine'' and
adding in its place the word ``equid'' wherever it appears;
0
c. In paragraph (a)(2)(iii), removing the words ``to the equine'' and
adding in their place the words ``into the equid'';
0
d. In paragraph (a)(2)(v), removing the word ``equines'' and adding in
its place the word ``equids'';
0
e. Adding paragraph (b)(1)(ii)(D);
0
f. Revising paragraphs (b)(1)(iii)(B), (b)(4) introductory text, and
(c)(3);
0
g. Removing paragraph (c)(4);
0
h. Revising paragraphs (e)(1)(iii) and (iv);
0
i. Adding in paragraph (e)(2)(iv) the words ``or other EID'' between
the words ``RFID'' and ``eartag''; and
0
j. Adding an OMB citation at the end of the section.
The additions and revisions read as follows:
Sec. 86.4 Official identification.
(a) Official identification devices and methods. The Administrator
has approved the following official identification devices or methods
for the species listed. The Administrator may authorize the use of
additional devices or methods for a specific species if he or she
determines that such additional devices or methods will provide for
adequate traceability. Additional guidance on official identification
devices, methods, and the approval process is found in the Official
Animal Identification Device Standards (OAIDS) document.
(1) * * *
(i) For an official eartag, beginning November 5, 2024, all
official eartags sold for or applied to cattle and bison must be
readable both visually and electronically (EID);
* * * * *
(b) * * *
(1) * * *
(ii) * * *
(D) Cattle and bison leaving a slaughter establishment may only be
moved to another recognized slaughter establishment or approved feedlot
and can only be sold/re-sold as slaughter cattle, and they must be
accompanied by an owner-shipper statement in accordance with Sec.
86.5(c)(1). Information listed on the document must include the name
and address of the slaughter establishment from which the animals left,
the official identification numbers, as defined in Sec. 86.1,
correlated with the USDA backtag number (if available), the name of the
destination slaughter establishment, or approved feedlot (as defined in
Sec. 77.5 of this subchapter) to which the animals are being shipped.
(iii) * * *
(B) All dairy cattle;
* * * * *
(4) Horses and other equids. Horses and other equids moving
interstate must be officially identified prior to the interstate
movement, using an official identification device or method listed in
paragraph (a)(2) of this section unless:
* * * * *
(c) * * *
(3) A visually and electronically readable eartag may be applied to
an animal that is already officially identified with one or more non-
EID official eartags and/or a non-EID official vaccination eartag used
for brucellosis. The person applying the new visually and
electronically readable eartag must record the date the eartag is
applied to the animal and the official identification numbers of both
official eartags and must maintain those records for 5 years.
* * * * *
(e) * * *
(1) * * *
(iii) Malfunction of the electronic component of an electronically
readable (EID) device; or
(iv) Incompatibility or inoperability of the electronic component
of an EID device with the management system or unacceptable
functionality of the management system due to use of an EID device.
* * * * *
(Approved by the Office of Management and Budget under control
number 0579-0327)
0
12. Revise Sec. 86.5 to read as follows:
Sec. 86.5 Documentation requirements for interstate movement of
covered livestock.
(a) Responsible persons and required documentation. The persons
responsible for animals leaving a premises for interstate movement must
ensure that the animals are accompanied by an interstate certificate of
veterinary inspection (ICVI) or other document required by this part
for the interstate movement of animals.
(b) Forwarding of documents. (1) The APHIS representative, State or
Tribal representative, or accredited veterinarian issuing an ICVI or
other document required for the interstate movement of animals under
this part, must forward a copy of the ICVI or other document to the
State or Tribal animal health official of the State or Tribe of origin
within 7 calendar days from the date on which the ICVI or other
document is issued. The State or Tribal animal health official in the
State or Tribe of origin must forward a copy of the ICVI or other
document to the State or Tribal animal health official in the State or
Tribe of destination within 7 calendar days from date on which the ICVI
or other document is received.
(2) The animal health official or accredited veterinarian issuing
or receiving an ICVI or other interstate movement document in
accordance with paragraph (b)(1) of this section must keep a copy of
the ICVI or alternate documentation. For poultry and swine, such
documents must be kept for at least 2 years, and for cattle and bison,
sheep and goats, cervids, and equine species, 5 years.
(c) Cattle and bison. Cattle and bison moved interstate must be
accompanied by an ICVI unless:
(1) They are moved directly to a recognized slaughtering
establishment, or directly to an approved livestock facility and then
directly to a recognized slaughtering establishment, and they are
accompanied by an owner-shipper statement.
(2) They are moved directly to an approved livestock facility with
an owner-shipper statement and do not move interstate from the facility
unless accompanied by an ICVI.
(3) They are moved from the farm of origin for veterinary medical
examination or treatment and returned
[[Page 39566]]
to the farm of origin without change in ownership.
(4) They are moved directly from one State through another State
and back to the original State.
(5) They are moved as a commuter herd with a copy of the commuter
herd agreement or other document, as agreed to by the States or Tribes
involved in the movement.
(6) Additionally, cattle and bison may be moved between shipping
and receiving States or Tribes with documentation other than an ICVI,
e.g., a brand inspection certificate, as agreed upon by animal health
officials in the shipping and receiving States or Tribes.
(7) The official identification number of cattle or bison must be
recorded on the ICVI or alternate documentation unless:
(i) The cattle or bison are moved from an approved livestock
facility directly to a recognized slaughtering establishment; or
(ii) The cattle and bison are sexually intact cattle or bison under
18 months of age or steers or spayed heifers; except that this
paragraph (c)(7)(ii) does not apply to dairy cattle of any age or to
cattle or bison used for rodeo, exhibition, or recreational purposes.
(d) Horses and other equine species. Horses and other equine
species moved interstate must be accompanied by an ICVI unless:
(1) They are used as the mode of transportation (horseback, horse
and buggy) for travel to another location and then return direct to the
original location; or
(2) They are moved from the farm or stable for veterinary medical
examination or treatment and returned to the same location without
change in ownership; or
(3) They are moved directly from a location in one State through
another State to a second location in the original State.
(4) Additionally, equids may be moved between shipping and
receiving States or Tribes with documentation other than an ICVI, e.g.,
an equine infectious anemia test chart, as agreed to by the shipping
and receiving States or Tribes involved in the movement.
(5) Equids moving commercially to slaughter must be accompanied by
documentation in accordance with part 88 of this subchapter. Equine
infectious anemia reactors moving interstate must be accompanied by
documentation as required by part 75 of this subchapter.
(e) Poultry. Poultry moved interstate must be accompanied by an
ICVI unless:
(1) They are from a flock participating in the National Poultry
Improvement Plan (NPIP) and are accompanied by the documentation
required under the NPIP regulations (parts 145 through 147 of this
chapter) for participation in that program; or
(2) They are moved directly to a recognized slaughtering or
rendering establishment; or
(3) They are moved from the farm of origin for veterinary medical
examination, treatment, or diagnostic purposes and either returned to
the farm of origin without change in ownership or euthanized and
disposed of at the veterinary facility; or
(4) They are moved directly from one State through another State
and back to the original State; or
(5) They are moved between shipping and receiving States or Tribes
with a VS Form 9-3 or documentation other than an ICVI, as agreed upon
by animal health officials in the shipping and receiving States or
Tribes; or
(6) They are moved under permit in accordance with part 82 of this
subchapter.
(f) Sheep and goats. Sheep and goats moved interstate must be
accompanied by documentation as required by part 79 of this subchapter.
(g) Swine. Swine moved interstate must be accompanied by
documentation in accordance with Sec. 71.19 of this subchapter or, if
applicable, with part 85 of this subchapter.
(h) Captive cervids. Captive cervids moved interstate must be
accompanied by documentation as required by part 77 of this subchapter.
(Approved by the Office of Management and Budget under control
number 0579-0327)
Done in Washington, DC, this 26th day of April 2024.
Jennifer Moffitt,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2024-09717 Filed 5-8-24; 8:45 am]
BILLING CODE 3410-34-P