[Federal Register Volume 61, Number 98 (Monday, May 20, 1996)]
[Rules and Regulations]
[Pages 25135-25138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12623]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 61, No. 98 / Monday, May 20, 1996 / Rules and
Regulations
[[Page 25135]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 50 and 77
[Docket No. 94-133-2]
Tuberculosis in Cattle, Bison, and Cervids; Payment of Indemnity
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 regulations to provide for the payment of
indemnity for cervids destroyed because of tuberculosis, and to provide
for the payment of indemnity for cattle, bison, and cervids found to
have been exposed to tuberculosis by reason of association with any
tuberculous livestock. The interim rule was necessary to encourage
owners to rapidly remove cattle, bison, and cervids affected with and
exposed to tuberculosis from their herds. Rapid removal of such cattle,
bison, and cervids will help protect other cattle, bison, and cervids
from tuberculosis and will facilitate tuberculosis eradication efforts
in the United States. The interim rule also amended the regulations to
deny claims for indemnity for depopulation of cattle, bison, and cervid
herds unless other exposed livestock in the herd have been destroyed.
This action was necessary to help ensure that when cattle, bison, and
cervids in a herd are depopulated, other livestock do not remain as
potential sources of infection when the owner restocks the herd with
healthy animals.
EFFECTIVE DATE: June 19, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. Mitchell A. Essey, Senior Staff
Veterinarian, Cattle Diseases and Surveillance, VS, APHIS, Suite 3B08,
4700 River Road Unit 36, Riverdale, MD 20737-1231, (301) 734-8715.
SUPPLEMENTARY INFORMATION:
Background
Bovine tuberculosis (referred to below as tuberculosis) is a
serious communicable disease of cattle, bison, and other species,
including humans, caused by Mycobacterium bovis. Tuberculosis causes
weight loss, general debilitation, and sometimes death. The regulations
in 9 CFR part 50 provide for payment of Federal indemnity to owners of
certain cattle, bison, or swine destroyed because of tuberculosis.
In an interim rule effective and published in the Federal Register
on July 24, 1995 (60 FR 37804-37810, Docket No. 94-133-1), the Animal
and Plant Health Inspection Service (APHIS) amended the tuberculosis
regulations in 9 CFR part 50 to provide for the payment of indemnity
for cervids destroyed because of tuberculosis, at rates not to exceed
$750 for any reactor cervid and $450 for any exposed cervid. In
conjunction with this action, we amended the regulations to make the
provisions that apply to cattle and bison also apply to cervids, where
appropriate. These provisions include recordkeeping, procedures for
claiming indemnity, and claims not allowed.
These provisions also include identification of reactor and exposed
cervids to be moved interstate to slaughter. The interim rule required
that reactor cervids be identified by branding the letter ``T'' high on
the left hip near the tailhead and at least 5 by 5 centimeters (2 by 2
inches) in size and by attaching to the left ear an approved metal
eartag bearing a serial number and the inscription ``U.S. Reactor'', or
a similar State reactor tag; and that exposed cervids be identified by
branding the letter ``S'' high on the left hip near the tailhead and at
least 5 by 5 centimeters (2 by 2 inches) in size and by attaching to
the left ear an approved metal eartag bearing a serial number. As an
alternative to branding, we allowed exposed cervids to be moved
interstate to slaughter without branding if they are either accompanied
directly to slaughter by an APHIS or State representative or moved
directly to slaughter in vehicles closed with official seals applied
and removed by an APHIS representative, State representative,
accredited veterinarian, or an individual authorized for this purpose
by an APHIS representative. For reactor cervids, we allowed the same
movement without branding as for exposed cervids, if the reactors are
identified by a ``TB'' tattooed on the left ear and with yellow paint
sprayed on the left ear.
We also amended the regulations to provide for the payment of
indemnity for cattle, bison, and cervids found to have been exposed to
tuberculosis by reason of association with any tuberculous livestock,
not just by reason of association with tuberculous cattle and bison.
Finally, we amended the regulations to deny claims for indemnity for
depopulation of cattle, bison, and cervid herds unless other exposed
livestock in the herd have been destroyed.
Comments on the interim rule were required to be received on or
before September 22, 1995. We received 50 comments by that date. They
were from cervid producers and cervid producer associations, other
livestock producers, veterinary associations, and animal welfare
groups. Forty-eight of the comments supported the interim rule without
change; two were opposed to the interim rule. The objections raised by
the two comments opposed to the rule are discussed below.
Both of the opposing comments were against the interim rule because
it concerns the farming of cervids, and the commenters oppose any
activities involving the confinement and breeding of wild animals. One
commenter stated that ``by offering to pay businesses to slaughter off
those captive cervids who test positive for tuberculosis, or who are
exposed to the disease, APHIS, in fact, ensures that the confinement
and breeding of cervids shall not only continue, but also become more
profitable, and, inevitably, more widespread.''
The commenters gave two reasons for objecting to the farming of
cervids. One is that they claim the farming of wildlife is ecologically
irresponsible. They argue that cervids do not have a long history of
domestication and breeding for docility, making them ill-suited for
captivity; and, the existence of deer farms encourages the public to
view wildlife as private property, undermining efforts to protect
wildlife in its natural habitat. The second reason is that they claim
the farming of wildlife is epidemiologically unwise because it
[[Page 25136]]
facilitates disease transfer between wild and domestic species. We have
made no changes based on these comments.
The practice of raising deer and elk for agricultural purposes has
existed for thousands of years and is considered an established and
legitimate agricultural activity. Deer have been farmed in China since
before 3000 B.C. The Romans were active game ranchers, and deer and elk
farming is today a standard agricultural practice in Europe. Breeding
and production of deer, elk, and other cervids has taken place in the
United States since at least the 1930's.
It is true that the last 20 years has seen a marked increase in the
number of captive cervid farms and ranches. There are currently more
than 1,600 deer and elk owners in the United States, raising about
250,000 head. This may account for the increase in the number of M.
bovis cases discovered in captive cervid herds in the last decade. It
is not APHIS' mission, nor is it within our authority, to prohibit what
is considered a legitimate agricultural practice. If APHIS were to
ignore discoveries of tuberculosis in captive cervids, the consequences
for all U.S. livestock, and for wild cervids and other wildlife that
can contract tuberculosis, would be devastating. The mission of APHIS
is to ensure the health of all livestock in the United States. The
indemnity paid to ranchers who must sacrifice tuberculous livestock is
not enough to help make their businesses more profitable--the slaughter
of diseased livestock always results in monetary loss to an owner. The
payment may enable the ranchers to restock their herds, but also will
encourage owners who may not otherwise depopulate a tuberculous herd
for fear of monetary loss to slaughter their animals knowing they will
receive partial compensation. The payment of indemnity to owners of
reactor and exposed cervids is very important not only to achieve
tuberculosis-free herds of captive cervids, but for the health of all
U.S. livestock and for the health of U.S. wildlife.
One of the opposing commenters asked that, if APHIS does choose to
make the interim rule final, we amend it to eliminate the need for
branding by requiring that all reactor and exposed cervids moved
interstate to slaughter be accompanied by an APHIS or State
representative or be moved in vehicles closed with official seals
applied and removed by an APHIS representative, a State representative,
an accredited veterinarian, or an individual authorized for this
purpose by an APHIS representative. We have made no changes based on
this comment.
It is our belief that most cervid owners will choose to move their
animals to slaughter without branding using one of the options provided
in the interim rule. Branding a herd of livestock is time-consuming,
difficult, and costly because of the effort and personnel needed to
restrain each animal. This is even more true for cervids than for other
livestock because, as one commenter pointed out, cervids are powerful,
flighty, and easily frightened animals requiring firmer restraint than
most domesticated cattle and posing a safety risk to anyone handling
them. It is far easier to simply herd the animals into a truck which is
then sealed by the APHIS representative, State representative, or
accredited veterinarian who identified the herd. However, there are
always circumstances under which it is impractical or unfeasible for
owners to move their animals in this manner, such as lack of a proper
vehicle, unavailability of APHIS or State personnel, or inability to
market the animals immediately. Under such circumstances, it would be
necessary for owners to have the cervids branded.
The commenter further asked that, if we do not make the change
requested above, we amend the interim rule by replacing the requirement
that cervids be marked with a hot-iron brand with a requirement that
allows for any method of marking (specifically, freeze-branding) that
produces permanence and legibility by the time of an animal's shipment
to slaughter, even if the mark is not instantly recognizable upon
application. We have made no changes based on this comment.
This rulemaking concerns animals that have responded to a test for
tuberculosis, or are known to have been exposed to an animal that has
responded to a test for tuberculosis. Because tuberculosis is such a
destructive disease, it is imperative that such animals be either
identified immediately or moved to slaughter in such a manner that
there is no significant risk the animals will be diverted from their
destination. For this reason we did not propose to allow marking
methods (such as freeze-branding) that are not instantly recognizable
for identifying tuberculosis reactor and exposed cervids. The necessity
for an instantly recognizable mark is so that the animals are not
unknowingly commingled with healthy animals after they leave the
premises where they were identified for slaughter. Even if the
``instantly recognizable'' requirement were to be waived to allow
freeze-branding, the owners of reactor or exposed cervids would have to
keep those animals under quarantine for the 18-21 days that it takes
for the mark to become visible. That extra time on the farm would
increase the chances that healthy animals might become exposed or
infected. A central goal of the tuberculosis eradication program is to
identify diseased animals and get them away from other animals before
the disease can spread. To require the animals to be kept on the farm
runs counter to that goal. The owners of the quarantined cervids would
also be subject to economic losses associated with feeding and caring
for the animals, potential decreases in market prices, and animals
dying before sale.
The commenter pointed out that the tattoo mark that the interim
rule allows for reactor cervids moved to slaughter in sealed vehicles
is instantly recognizable, and that we should allow this method of
marking for exposed cervids, as well. The tattoo mark in the ear of
reactor cervids moved to slaughter in a sealed vehicle is an added
precaution to ensure that a tuberculosis reactor is not sold for any
purpose other than slaughter.
There are problems with tattooing that prevent us from offering it
as a general alternative to branding for all disease-affected animals.
One is that the tattoo must be on skin (not hair) in order to be
legible. We have chosen the inside of the ear as the most accessible
and reliable area on which to place a tattoo. However, unlike a brand,
which can be applied and spotted more easily, the animal's head must be
restrained in order to tattoo the ear, and in order to see the tattoo
at a later time. Yellow paint on the ear can help identify an animal
which has a ``TB'' tattoo, but it is not foolproof, as paint can wear
or rub off. For these reasons, we have chosen to confine the use of a
tattoo as disease identification to tuberculosis reactors that are
moved to slaughter in sealed vehicles.
Miscellaneous Change
As stated previously, the interim rule required that reactor
cervids be identified by a brand and by attaching to the left ear an
approved metal eartag bearing a serial number and the inscription
``U.S. Reactor'', or similar State reactor tag; and that exposed
cervids be identified by a brand and by attaching to the left ear an
approved metal eartag bearing a serial number. We recently published a
final rule that required the same identification for tuberculosis
reactor and exposed cattle and bison (Docket No. 95-006-2, 60 FR 48362-
48369, published September 19, 1995).
[[Page 25137]]
Although not mentioned in any comments we received on this interim
rule or on the final rule for cattle and bison, it has nevertheless
come to our attention that the requirement that exposed cattle, bison,
and cervids be tagged on the left ear needs to be revised to allow the
eartag to be attached to either ear. The eartag attached to reactor
cattle, bison, and cervids bears the inscription ``U.S. Reactor'', and
has historically been attached to the left ear to help quickly
differentiate reactors from other cattle, bison, and cervids. The
eartag attached to exposed cattle, bison, and cervids is not a special
eartag, but is the same eartag used to identify any animal that has
been tested for tuberculosis. Historically, we have not specified to
which ear the tag should be attached, and in some cases, it has been
policy to attach all eartags except reactor tags to the right ear.
Veterinarians and cattle, bison, and cervid owners have been used to
attaching non-reactor eartags to either ear, and we have experienced no
problems with this system.
Therefore, to avoid confusion, we are revising the interim rule to
allow exposed cervids to be identified by attaching to either ear an
approved metal eartag bearing a serial number. We are also revising the
regulations in 9 CFR part 50 and part 77, concerning tuberculosis in
cattle and bison, to allow exposed cattle and bison to be identified by
attaching to either ear an approved metal eartag bearing a serial
number.
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.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
This document makes final an interim rule effective and published
in the Federal Register on July 24, 1995 (60 FR 37804-37810, Docket No.
94-133-1). As part of the interim rule document, we performed an
Initial Regulatory Flexibility Analysis, in which we invited comments
concerning potential effects of the interim rule. We stated that we
were particularly interested in determining the number and kind of
small entities that might incur benefits or costs from implementation
of the rule. None of the comments we received on the interim rule
addressed our Initial Regulatory Flexibility Analysis, and none
provided any information of the type we requested. We have therefore
based this Final Regulatory Flexibility Analysis on the data available
to us.
The interim rule provided for the payment of indemnity for the
destruction of tuberculosis reactor cervids, at the rate of up to $750
per head. The interim rule also provided for the payment of indemnity
for cervids, cattle, or bison that are destroyed because of
tuberculosis after being exposed to any tuberculous livestock, at the
rate of up to $450 per head. These are the same rates currently
provided in the regulations for tuberculosis reactor cattle and bison
and for cattle and bison exposed to tuberculous cattle and bison. The
interim rule was necessary to encourage owners to rapidly remove
cattle, bison, and cervids affected with and exposed to tuberculosis
from their herds, thereby facilitating tuberculosis eradication efforts
in the United States. Depopulation of tuberculous cattle, bison, and
cervids is voluntary.
Cervid producers affected by this rule would be primarily producers
of deer and elk. There are approximately 1,600 deer and elk producers
in the United States, raising about 250,000 head under controlled farm
conditions. Holdings vary in size and degree of commercialization, but
almost all deer and elk producers can be classified as small businesses
(defined by the Small Business Administration as having less than $0.5
million annual gross receipts). However, many producers rely on other
sources of income (such as dairy farming or beef cattle ranching) for
their livelihoods.
In general, elk producers concentrate on building up their herds,
with most newborns retained as breeding stock. However, a fair market
value for a heifer elk is between $4,000 and $5,000. Annual income is
earned from the sale of antlers cut in the velvet stage of growth. The
antlers sell for about $65 per pound, and a single bull elk can produce
an average of 18 pounds of antlers per year, for more than 10 years.
Thus, a gross income of $1,000 or more can be derived per year from a
bull elk.
The value per animal is lower for deer than for elk, and varies by
species. Currently, at private sales, prices for good quality fallow
does and bucks range between $500 and $1,000. Young deer command only
$300 to $500 per head. Slightly lower prices prevail at public
auctions.
Destruction of cervid herds affected with tuberculosis is voluntary
on the part of the owners. The indemnity payments of up to $750 per
head for reactor cervids and up to $450 per head for exposed cervids
will partially compensate cervid producers for lost income incurred by
the destruction of the animals. These indemnity payments could provide
a significant incentive for the owners of these herds to destroy the
tuberculous animals. Although the indemnity payments will not
completely cover the monetary losses resulting from whole herd
depopulation, the payments will significantly reduce losses for deer
and elk producers.
The alternative to the interim rule would have been to take no
action. We did not consider taking no action a reasonable alternative
because, without the economic incentive of Federal compensation for
destroyed animals, owners would be more likely to allow tuberculosis
infection to persist in their herds.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are in conflict with this rule; (2) has no retroactive
effect; and (3) does not require administrative proceedings before
parties may file suit in court challenging this rule.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this rule have been approved by the Office of Management
and Budget (OMB) under OMB control number 0579-0084.
List of Subjects
9 CFR Part 50
Animal diseases, Bison, Cattle, Hogs, Indemnity payments, Reporting
and recordkeeping requirements, Tuberculosis.
9 CFR Part 77
Animal diseases, Bison, Cattle, Reporting and recordkeeping
requirements, Transportation, Tuberculosis.
Accordingly, 9 CFR parts 50 and 77 are amended as follows:
[[Page 25138]]
PART 50--ANIMALS DESTROYED BECAUSE OF TUBERCULOSIS
1. The authority citation for part 50 continues to read as follows:
Authority: 21 U.S.C. 111-113, 114, 114a, 114a-1, 120, 121, 125,
and 134b; 7 CFR 2.22, 2.80, and 371.2(d).
Sec. 50.6 [Amended]
2. In Sec. 50.6, paragraphs (b) and (e), the words ``the left ear''
are removed from the first sentence of each paragraph and the words
``either ear'' are added in their place.
PART 77--TUBERCULOSIS
3. The authority citation for part 77 continues to read as follows:
Authority: 21 U.S.C. 111, 114, 114a, 115-117, 120, 121, 134b,
and 134f; 7 CFR 2.22, 2.80, and 371.2(d).
Sec. 77.5 [Amended]
4. In Sec. 77.5, paragraph (b)(1), the words ``the left ear'' are
removed and the words ``either ear'' are added in their place.
Done in Washington, DC, this 14th day of May 1996.
Lonnie J. King,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-12623 Filed 5-17-96; 8:45 am]
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