05-4917. Bovine Spongiform Encephalopathy; Minimal-Risk Regions and Importation of Commodities; Partial Delay of Applicability

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule; partial delay of applicability.

SUMMARY:

The amendments in this final rule delay until further notice the applicability of certain provisions of the rule entitled “Bovine Spongiform Encephalopathy; Minimal-Risk Regions and Importation of Commodities,” published in the Federal Register on January 4, 2005, 70 FR 460-553. That rule was scheduled to amend the regulations in 9 CFR parts 93, 94, 95, and 96, effective March 7, 2005, to establish a category of regions that present a minimal risk of introducing bovine spongiform encephalopathy into the United States via live ruminants and ruminant products and byproducts and to add Canada to this category. That rule included conditions for the importation of certain live ruminants and ruminant products from such regions.

DATES:

Effective March 7, 2005.

FOR FURTHER INFORMATION CONTACT:

Dr. Karen James-Preston, Director, Technical Trade Services, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231; [phone].

SUPPLEMENTARY INFORMATION:

On January 4, 2005, we published a final rule in the Federal Register (70 FR 460-553, Docket No. 03-080-3) that establishes a category of regions that present a minimal risk of introducing bovine spongiform encephalopathy into the United States via live ruminants and ruminant products and byproducts and that adds Canada to this category. The rule also establishes conditions for the importation of certain live ruminants and ruminant products from such regions. The rule was scheduled to become effective on March 7, 2005.^[1]

Pursuant to an announcement by the Secretary of Agriculture on February 9, 2005, this document delays the applicability of the provisions in that rule as they apply to the importation from Canada of the following commodities when derived from bovines 30 months of age or older when slaughtered: (1) Meat, meat food products, and meat byproducts other than liver; ^[2] (2) whole or half carcasses; (3) offal; (4) tallow composed of less than 0.15 percent insoluble impurities that is not otherwise eligible for importation under 9 CFR 95.4(a)(1)(i); and (5) gelatin derived from bones of bovines that is not otherwise eligible for importation under 9 CFR 94.18(c).

If the courts allow the January 4, 2005, rule to go into effect while this delay of applicability is in effect, the commodities listed above that are derived from bovines less than 30 months of age when slaughtered must be accompanied to the United States by certification that (1) the age requirement has been met and (2) the commodity was processed in an establishment inspected by the Canadian Food Inspection Agency (CFIA) that operates in compliance with an approved CFIA program to prevent commingling of ruminant products eligible for export to the United States with ruminant products ineligible for export to the United States. Such certification must be made by a full-time salaried veterinary officer of Canada, or by a veterinarian designated and accredited by the Canadian Government, provided the certification is endorsed by a full-time salaried veterinary officer of Canada who represents that the veterinarian issuing the certification was authorized to do so.

To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, the Department's implementation of this action without opportunity for public comment is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary, and contrary to the public interest. The delay of applicability is necessary to give Department officials the opportunity for further review and consideration of the specified provisions. Given the scheduled effective date of those provisions, seeking prior public comment on this delay would have been impractical, as well as contrary to the public interest, in the orderly promulgation and implementation of regulations.

List of Subjects

9 CFR Part 94

• Animal diseases
• Imports
• Livestock
• Meat and meat products
• Milk
• Poultry and poultry products
• Reporting and recordkeeping requirements

9 CFR Part 95

• Animal feeds
• Hay
• Imports
• Livestock
• Reporting and recordkeeping requirements
• Straw
• Transportation

Accordingly, we are amending 9 CFR parts 94 and 95 as follows:

PART 94—RINDERPEST, FOOT-AND-MOUTH DISEASE, FOWL PEST (FOWL PLAGUE), EXOTIC NEWCASTLE DISEASE, AFRICAN SWINE FEVER, CLASSICAL SWINE-FEVER, AND BOVINE SPONGIFORM ENCEPHALOPATHY: PROHIBITED AND RESTRICTED IMPORTATIONS

1. The authority citation for part 94 continues to read as follows:

Authority: 7 U.S.C. 450, 7701-7772, and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.

2. Section 94.19 is amended by adding notes at the end of paragraphs (a), (b), and (f) to read as follows:

§ 94.19

Restrictions on importation from BSE minimal-risk regions of meat and edible products from ruminants.

* * * * *

(a) * * *

Note to paragraph (a):

The applicability of paragraph (a) to meat, meat byproducts other than liver, and meat food products when such commodities are derived from bovines that were 30 months of age or older when slaughtered is delayed indefinitely.

(b) * * *

Note to paragraph (b):

The applicability of paragraph (b) to whole or half carcasses derived from bovines that were 30 months of age or older when slaughtered is delayed indefinitely.

* * * * *

(f) * * *

Note to paragraph (f):

The applicability of paragraph (f) to gelatin derived from the bones of bovines that were 30 months of age or older when slaughtered is delayed indefinitely.

* * * * *

PART 95—SANITARY CONTROL OF ANIMAL BYPRODUCTS (EXCEPT CASINGS), AND HAY AND STRAW, OFFERED FOR ENTRY INTO THE UNITED STATES

3. The authority citation for part 95 continues to read as follows:

Authority: 7 U.S.C. 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.

4. Section 95.4 is amended by adding notes at the end of paragraphs (f) and (g) to read as follows:

§ 95.4

Restrictions on the importation of processed animal protein, offal, tankage, fat, glands, certain tallow other than tallow derivatives, and serum due to bovine spongiform encephalopathy.

* * * * *

(f) * * *

Note to paragraph (f):

The applicability of paragraph (f) to tallow derived from bovines that were 30 months of age or older when slaughtered is delayed indefinitely.

(g) * * *

Note to paragraph (g):

The applicability of paragraph (g) to offal derived from bovines that were 30 months of age or older when slaughtered is delayed indefinitely.

* * * * *

Done in Washington, DC, this 8th day of March 2005.

Bill Hawks,

Under Secretary for Marketing and Regulatory Programs.

Footnotes

1.  On March 2, 2005, Judge Richard F. Cebull of the U.S. District Court for the District of Montana ordered that the implementation of APHIS' January 4, 2005, final rule is preliminarily enjoined.

2.  In accordance with an August 8, 2003, announcement by the Secretary of Agriculture, since August 2003 APHIS has issued permits for the importation into the United States from Canada of certain fresh or frozen liver from bovines of any age.