[Federal Register Volume 62, Number 234 (Friday, December 5, 1997)]
[Rules and Regulations]
[Pages 64265-64266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31899]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 91 and 93
[Docket No. 94-076-2]
Cattle Imported In Bond for Feeding and Return to Mexico
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are adopting as a final rule, with one change, an interim
rule that amended the animal exportation and importation regulations by
removing provisions that allowed the temporary, in-bond importation of
cattle from Mexico into the United States for feeding and return to
Mexico for slaughter. That interim rule was necessary because the U.S.
Customs Service, to comply with provisions of the North American Free
Trade Agreement, had discontinued its collection of duties and cash
bonds on cattle imported into the United States from Mexico; without a
cash bond, we were unable to meaningfully penalize importers who failed
to return those cattle to Mexico. We continue to believe that the
termination of the in-bond program was necessary to prevent the
dissemination of animal diseases into the United States by in-bond
cattle that may have remained in the United States in violation of the
regulations.
EFFECTIVE DATE: January 5, 1998.
FOR FURTHER INFORMATION CONTACT: Dr. David Vogt, Senior Staff
Veterinarian, National Center for Import and Export, VS, APHIS, 4700
River Road Unit 39, Riverdale, MD 20737-1231; (301) 734-8170.
SUPPLEMENTARY INFORMATION:
Background
The regulations in 9 CFR part 93 prohibit or restrict the
importation of certain animals into the United States to prevent the
introduction of communicable diseases of livestock and poultry. Subpart
D of part 93 (Secs. 93.400 through 93.435), referred to below as the
regulations, pertains to the importation of ruminants. Sections 93.424
through 93.429 of the regulations contain specific provisions regarding
the importation of ruminants, including cattle, from Mexico.
Note: At the time the interim rule referred to in this document
was published, the provisions described in the previous paragraph
were located in 9 CFR part 92. However, on October 28, 1997, we
published in the Federal Register (62 FR 56000-56026, Docket No. 94-
106-9) a final rule that redesignated part 92 as part 93. In
describing the actions taken in the interim rule, we will use the
part and section numbers used in the interim rule; where
appropriate, however, we will cross-reference part 92 citations with
their current locations in part 93.)
In an interim rule published in the Federal Register on March 15,
1995 (60 FR 13896-13898, Docket No. 94-076-1), and effective March 30,
1995, we amended the regulations by removing Sec. 92.427(e), ``Cattle
imported in bond for feeding and return to Mexico,'' in its entirety
and by removing five references to the in-bond program that were found
elsewhere in part 92 and in the animal export regulations in 9 CFR part
91. Before the effective date of the interim rule, Sec. 92.427(e) of
the regulations provided for the temporary importation of cattle from
Mexico into the United States under U.S. Customs bond for feeding and
return to Mexico for slaughter. Cattle imported under that in-bond
program were exempt from some animal disease testing requirements that
applied to the importation of other cattle from Mexico, but were
subject to additional restrictions during the time they were in the
United States that did not apply to other cattle imported from Mexico.
We solicited comments concerning the interim rule for 60 days
ending May 15, 1995. We received six comments by that date. They were
from a foreign government, foreign and domestic trade associations and
industry groups, and a customs brokerage. One of the commenters
strongly supported the interim rule, while the remaining five
commenters opposed the discontinuation of the program. Their comments
are discussed below.
Two commenters reported that they had experienced no problems with
the in-bond program and felt that it could continue in the absence of a
bond, but offered no specific evidence to support their position.
Similarly, two other commenters stated that the in-bond program had
presented no animal health problems in its 5 years of existence, so
there was no reason to believe that the opposite would be true in the
future. Those commenters stated that the safeguards contained in the
in-bond program, such as the use of sealed vehicles for movement and
the requirement that in-bond cattle be held in quarantined feedlots,
had proven sufficient in the past to prevent the spread of disease, and
could continue to do so. We agree that the quarantine and movement
restrictions of the in-bond program were effective in mitigating the
disease risk associated with in-bond cattle. However, as we stated in
the interim rule, the actions of some importers led us to believe that
the posting of a bond was necessary to ensure compliance with those
provisions of the in-bond program. Without the authority to institute a
bond system similar to that administered by the U.S. Customs Service at
U.S. ports of entry on the Mexican border prior to January 1, 1994, we
found that it was necessary to terminate the in-bond program in order
to prevent animal diseases from being introduced into, and disseminated
within, the United States.
One commenter stated that the Animal and Plant Health Inspection
Service (APHIS) was incorrect in claiming that cattle imported
temporarily for feeding and return to Mexico were no longer covered by
a bond; Customs bonds do still apply, the commenter argued, so the in-
bond program could continue. We noted in the interim rule that Customs
and APHIS continued to allow temporary importations of cattle from
Mexico even after January 1, 1994, when the Customs Service
discontinued its collection of duties and cash bonds on imported
Mexican cattle in order to comply with provisions of the North American
Free Trade Agreement (NAFTA). From January 1, 1994, until March 30,
1995, the effective date of the interim rule, the entry of those cattle
was covered by a
[[Page 64266]]
paperwork-only bond, with no money involved, so in terms of a Customs
bond being applied to temporary importations of Mexican cattle, the
commenter is correct. Our interim rule should have stated that cattle
imported for feeding and return to Mexico were no longer covered by a
cash bond, and that it was the absence of any cash bond that led to our
determination that the in-bond program should be terminated.
One commenter contended that the interim rule violated the terms of
NAFTA by instituting a sanitary measure without providing a risk
assessment, considering alternatives and economic impacts, or providing
the required 60-day notice to Mexico.
The interim rule contained a discussion of the increased disease
risks associated with the in-bond program and the measures that had
been in place to mitigate those risks. As stated in the interim rule,
the additional risks stemmed largely from the fact that in-bond cattle
were exempted from meeting certain testing requirements for brucellosis
and tuberculosis; those risks had been mitigated by the quarantine and
movement restrictions of the in-bond program, and the cash bond had
served to ensure that the quarantine and movement restrictions were
observed. The termination of the in-bond program was based on our
determination that the loss of the cash bond rendered our mitigating
measures less effective than we believed was necessary.
The interim rule also discussed alternatives to ending the in-bond
program, e.g., continuing with a paperwork-only bond and the
possibility of APHIS implementing its own bond system. Further, an
economic analysis was provided in the interim rule to satisfy the
requirements of Executive Order 12866 and the Regulatory Flexibility
Act.
With regard to the 60-day notice, NAFTA allows a party to omit such
notice when the party considers it necessary to take measures to
address an urgent problem relating to sanitary and phytosanitary
protection. In such cases, the party must: (1) Immediately provide a
notification of the measures, including a brief description of the
urgent problem; (2) provide a copy of such measures upon request; and
(3) allow other parties and interested persons to make comments in
writing and, upon request, discuss such comments and take such comments
and the results of such discussions into account. All three of those
requirements were satisfied by the interim rule in that it provided
notification of our termination of the in-bond program 15 days prior to
the effective date of that action; set forth a description of the
urgent problem that led us to publish the interim rule without prior
opportunity for public comment; provided a full description of the
measures we were taking; and provided a 60-day comment period during
which interested persons could submit comments for APHIS'
consideration.
One commenter stated that the interim rule is an unjustified
nontariff trade barrier because the rule was based not on animal health
concerns, but on an administrative problem, i.e., the inability of the
Customs Service to collect the bond. We disagree with that argument
because Customs' inability to collect the bond is a reality mandated by
NAFTA, not an ``administrative problem'' that could be solved by a
change in procedure or a reallocation of resources. As explained above
and in the interim rule, we found that the bond was an important factor
in the enforceability of the restrictions designed to mitigate the
higher disease risk posed by cattle imported under the in-bond program.
If those restrictions were disregarded, there is the very real
possibility that cattle that had not been tested for tuberculosis or
brucellosis could be commingled with domestic livestock and spread
disease; we regard that as an animal health concern.
As noted above, the interim rule removed Sec. 92.427(e), which
contained the in-bond program's provisions, and five references to
those provisions found elsewhere in parts 91 and 92. Following the
publication of the interim rule, it was brought to our attention that
we failed to remove a sixth reference to the in-bond program from the
regulations in Sec. 92.427(c)(2) (current Sec. 93.427(c)(2)). We are,
therefore, removing that reference in this final rule.
Therefore, based on the rationale set forth in the interim rule and
in this document, we are adopting the provisions of the interim rule as
a final rule with the change discussed in this document.
This final rule also affirms the information contained in the
interim rule concerning Executive Order 12866 and the Regulatory
Flexibility Act, Executive Order 12372, and the Paperwork Reduction
Act.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
List of Subjects
9 CFR Part 91
Animal diseases, Animal welfare, Exports, Livestock, Reporting and
recordkeeping requirements, Transportation.
9 CFR Part 93
Animal diseases, Imports, Reporting and recordkeeping requirements.
Accordingly, the interim rule amending 9 CFR parts 91 and 92 (now 9
CFR parts 91 and 93) that was published at 60 FR 13896-13898 on March
15, 1995, is adopted as a final rule with the change set forth below.
PART 93--IMPORTATION OF CERTAIN ANIMALS, BIRDS, AND POULTRY, AND
CERTAIN ANIMAL, BIRD, AND POULTRY PRODUCTS; REQUIREMENTS FOR MEANS
OF CONVEYANCE AND SHIPPING CONTAINERS
1. The authority citation for part 93 continues to read as follows:
Authority: 7 U.S.C. 1622; 19 U.S.C. 1306; 21 U.S.C. 102-105,
111, 114a, 134a, 134b, 134c, 134d, 134f, 135, 136, and 136a; 31
U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.2(d).
Sec. 93.427 [Amended]
2. In Sec. 93.427, in paragraph (c)(2), the second sentence is
amended by removing the words ``or in bond for temporary entry in
accordance with Sec. 93.427(e)''.
Done in Washington, DC, this 1st day of December 1997.
Craig A. Reed,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 97-31899 Filed 12-4-97; 8:45 am]
BILLING CODE 3410-34-P
