[Federal Register Volume 59, Number 178 (Thursday, September 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22849]
[[Page Unknown]]
[Federal Register: September 15, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 92
[Docket No. 93-137-3]
Importation of Ratites and Hatching Eggs of Ratites
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are adopting as a final rule, with several changes, an
interim rule that amended the regulations regarding the importation of
ratites and hatching eggs of ratites. In this final rule, we are adding
identification and certification requirements to those established by
the interim rule. This action is necessary to help ensure that ratites
and hatching eggs of ratites that could pose a disease risk to poultry
and livestock in the United States are not imported into this country.
EFFECTIVE DATE: October 17, 1994.
FOR FURTHER INFORMATION CONTACT: Dr. Keith Hand, Senior Staff
Veterinarian, Import-Export Animals Staff, National Center for Import-
Export, Veterinary Services, APHIS, USDA, room 768, Federal Building,
6505 Belcrest Road, Hyattsville, MD 20782, (301) 436-5907.
SUPPLEMENTARY INFORMATION:
Background
The regulations in 9 CFR part 92 (referred to below as the
regulations) regulate the importation of certain animals and birds,
including ostriches and other flightless birds known as ratites, and
their hatching eggs, to prevent the introduction of communicable
diseases of livestock and poultry.
In an interim rule effective and published in the Federal Register
on March 8, 1994 (59 FR 10729-10734, Docket No. 93-137-1), we amended
the regulations by providing that ratites and hatching eggs of ratites
may not be imported into the United States unless specified
identification and recordkeeping requirements regarding their origin
and movement are met in the country of export.
We solicited comments concerning the interim rule for a 60-day
comment period ending May 9, 1994. On July 5, 1994, we published in the
Federal Register a notice (59 FR 34375, Docket No. 93-137-2) reopening
and extending the comment period until July 20, 1994. We received a
total of 10 comments on or before July 20. The commenters included
ratite industry associations, a veterinary association, individual
members of the general public, and representatives of foreign
governments. Five of the commenters supported the rule as written. The
other commenters either opposed the rule or suggested modifications to
it. We discuss these comments below.
One commenter objected to the fact that ratites may be imported
only from countries in which the national government maintains a
registry of premises where ratites or ratite hatching eggs are produced
for export to the United States. The commenter stated that prohibiting
the importation of ratites and ratite hatching eggs from countries that
do not meet this requirement will deny Americans access to imports, and
might ultimately lead to those countries' erecting trade barriers with
the United States. The commenter suggested that the restrictions on
importation should apply only to those countries in which smuggling has
been demonstrated to have occurred. We are making no changes based on
this comment. International trade in ratites and their hatching eggs
often involves transhipping birds and eggs among several countries.
Without the identification and recordkeeping requirements established
by the interim rule, it is difficult to ensure that ratites and
hatching eggs of ratites imported into the United States are from pen-
raised flocks.
One commenter stated that the interim rule was not warranted by the
incidence of disease found in imported ratites. According to the
commenter, since the reinstatement of ratite importation [56 FR 31856-
31868, Docket No. 90-147, published in the Federal Register July 12,
1991 and made effective August 12, 1991], no ostriches have been
refused entry due to illness, two shipments of emus have been denied
entry due to the detection of Salmonella, and one shipment of
cassowaries and emus was denied entry due to the detection of an H5
strain of avian influenza. We are making no changes based on this
comment. As we stated in the background information of our interim
rule, we consider the quarantine requirements that were in place prior
to the interim rule to be effective in identifying and preventing the
entry of ratites with communicable diseases. However, as we also stated
in our interim rule, the increased risk presented by smuggled or wild-
caught ratites jeopardizes the health of other ratites in quarantine
and unnecessarily increases the risk of the entry of a ratite with a
communicable disease.
Several commenters objected to the requirement that ratites
produced in a flock from which ratites or hatching eggs of ratites are
intended for importation into the United States be identified with an
identification number by means of a microchip implanted in the pipping
muscle at 1-day of age. One commenter stated that, although ostriches
at birth have a relatively large neck and a bulbous pipping muscle, emu
and rhea chicks have very slender necks with no visible pipping muscle,
and are too small at birth to safely undergo implantation of a
microchip. We do not agree that a microchip cannot be safely implanted
in newly hatched emus and rheas. However, we agree with the commenter
that the bulbous pipping muscle of the ostrich is not present in emus
and rheas. Therefore, we are amending the regulations at
Sec. 92.101(b)(3)(i)(B) to require that a microchip be implanted in the
pipping muscle of each ostrich produced in a flock from which ratites
or hatching eggs of ratites are intended to be imported into the United
States, and that a microchip be implanted in the upper neck of ratites
other than ostriches. We consider it necessary to implant the microchip
in either the pipping muscle or the upper neck to facilitate reading of
the microchip.
Another commenter recommended that if the microchip is not
implanted in the pipping muscle, the exact location of the microchip
should be indicated on a stock registry, on an export certificate, and
on an external form of identification on the ratite. We do not consider
such information necessary if the microchip is implanted as discussed
in the preceding paragraph.
One commenter also recommended that, for what the commenter termed
``practical reasons,'' microchipping be required not when the chick is
1-day of age, but rather either within 1 day of the chick leaving the
hatcher or, in the event of natural breeding and hatching, within 7
days of the chick's hatching. We are making no changes based on this
comment. We consider microchipping at the earliest possible date after
hatching necessary to enable inspectors to ensure that all ratites in a
flock are properly identified and are entered in the flock's register.
We are unaware of any reason such microchipping cannot be done when the
chicks are 1-day of age.
One commenter suggested that the Animal and Plant Health Inspection
Service (APHIS) should specify a location for implantation of
microchips on older birds as well as chicks. The commenter stated that
if ratites at some time become a source of food, it will be necessary
to locate and remove the microchips, and that a standard location for
implantation will facilitate that removal. We are making no changes
based on this comment. Our experience enforcing the regulations has
shown that relatively few ratites other than hatching eggs and chicks
are imported into the United States. Those that are imported cannot at
present be used for food, under U.S. Environmental Protection Agency
regulations, because they are required by APHIS to be treated with a
pesticide. Some of the relatively few older ratites imported into the
United States, particularly emus, have already been microchipped by
their owners for security purposes. These microchips have often been
implanted other than in the neck of the ratites, and we do not believe
it is necessary to require that the ratites be microchipped a second
time.
One commenter stated that the issue of the potential migration of
implanted microchips within ratites should be evaluated. We recognize
the possibility of the migration of an implanted microchip within a
ratite. At this time, however, we consider microchip implantation to be
the most reliable practical means of identifying ratites. Should an
implanted microchip migrate from the area of implantation, it can still
be located and read, although with greater difficulty than if it had
not migrated. We recognize that it is possible that more effective
means of identification may be developed in the future, and we will
evaluate each method of identification as it is developed and tested.
One commenter stated that, although using microchips for
identification of ratites is more effective than banding the ratites,
the only sure way of identifying ratites is through ``DNA
fingerprinting,'' by having a blood sample analyzed at a laboratory.
The commenter stated that microchips can be removed from one bird and
placed in another, can migrate in a bird's body, and can become
inactivated due to bumping or other harsh action. According to the
commenter, DNA fingerprinting could be done as needed, with a certain
number of ``fingerprints'' done randomly to ensure that breeders and
importers are ``kept honest.'' We are making no changes based on this
comment. Although we agree that ``DNA fingerprinting'' can be an
effective means of identification, it does not offer the necessary
speed of identification provided by microchipping.
Our interim rule contained a requirement that each hatching egg
produced in a flock from which ratites or hatching eggs of ratites are
intended to be imported into the United States be marked in indelible
ink with the date of production. One commenter recommended that these
hatching eggs also be marked with a code identifying the premises of
origin. We agree that such an identifying code would help ensure that
hatching eggs have originated in the flock indicated on the export
certificate, and we believe it would further aid identification of
hatching eggs if each egg is identified as to the country of the flock
of origin. Therefore, we are amending Sec. 92.101(b)(3)(i)(C) to
require that, on the date it is produced, each hatching egg produced in
the flock be marked with indelible ink with the date of production, and
also be identified with indelible ink as to the country and the
premises of the flock of origin. This identification must be in a form
assigned by the national government of the country in which the flock
is located.
One commenter recommended that the regulations require that
microchip readers provided to APHIS inspectors at the intended port of
entry be capable of reading microchips produced by different
manufacturers, so that APHIS inspectors would not have to maintain a
number of different readers. We are making no changes based on this
comment. Although we encourage standardization of microchips and
readers, even if such standardization does not occur, it will not be
necessary for APHIS inspectors to maintain a number of readers. Under
the regulations, each importer of ratites is responsible for providing
to APHIS inspectors the reader compatible with the microchips used for
identification.
Our interim rule included a requirement that a production ceiling
for each premises be set, based on the number of eggs the ratites in a
flock could reasonably be expected to produce over a given production
season. We defined production season as that period of time, usually
approximately 9 months each year, from the time ratites in a flock
begin laying eggs until the ratites cease laying eggs. We stated in the
background information to the interim rule that ratites by nature
follow a set cycle for laying eggs, and, for reasons of health and
productivity, must be given a period of rest between production
seasons. One commenter disagreed with our definition of production
season, and stated that a compulsory ``rest period'' is not necessary,
because some farmers might deliberately manage their flocks in such a
way as to export eggs throughout the entire year. We are making no
changes based on this comment. Our definition of production season does
not require a rest period. It merely describes what is standard
practice in the ratite industry. However, it should be noted that
Sec. 92.101(b)(3)(i)(H) prohibits the addition of ratites to a flock
during a production season. Therefore, a ``rest period'' is necessary
if an owner wishes to add ratites to his or her flock from outside the
flock.
Our interim rule included a requirement that the owner or manager
of a premises from which ratites or hatching eggs of ratites are
intended for importation into the United States maintain on a daily
basis a register of the numbers of ratites and hatching eggs in the
flock and the identification of the ratites. The interim rule required
further that the owner or manager submit these registers to the
National Veterinary Service of the country of export on a quarterly
basis, and that the national government in turn submit a copy of the
registers to the APHIS Administrator on a quarterly basis. One
commenter stated that these registers will be of no use to the APHIS
Administrator because, under the regulations, ratites from outside a
flock may not be added to that flock during a production period. We do
not agree that copies of the registers would be of no use to APHIS. A
copy of a register would be useful to APHIS in those cases where there
is some question as to whether a premises has exceeded its production
ceiling. However, we agree it will not be necessary for APHIS to
examine copies of registers in all cases. Therefore, in this final
rule, we are amending Sec. 92.101(b)(3)(i)(E) to remove the requirement
that registers be submitted on a quarterly basis, and to require,
instead, that the National Veterinary Service of the country of export
make copies of the registers available upon request to the
Administrator.
Under Sec. 92.101(b)(3)(i)(J) of the regulations established by the
interim rule, when the National Veterinary Service of the country of
export submits to APHIS copies of registers on a quarterly basis, it
also must indicate whether all ratites and hatching eggs of ratites on
a premises are identified as required. Because in this final rule we
are removing the requirement that registers be submitted on a quarterly
basis, we are also removing the requirement in Sec. 92.101(b)(3)(i)(J)
that the country of export indicate on a quarterly basis whether all
ratites and hatching eggs of ratites are identified as required.
However, as required by the interim rule, some of this information is
available to APHIS through other certification. In Secs. 92.104(c) and
(d), an export certificate must include, among other things,
certification that all ratites in the flock of origin have been
identified as required. In this final rule, we are adding to
Secs. 92.104(c) and (d) the requirement that the export certificate
also include certification that all hatching eggs in the flock of
origin have been marked as required.
One commenter, a representative of a country from which ratites and
hatching eggs of ratites are imported into the United States, stated
that it is important to reduce the annual ceiling for a flock if laying
ratites are removed from the premises. We agree that, because the
production ceiling for a flock is dependent on the number of ratites
mature enough to lay eggs, the ceiling should be reduced if laying hens
are removed from the flock. We are therefore adding to
Secs. 92.104(c)(15) and (d)(11) the requirement that the export
certificate that accompanies shipments of ratites or hatching eggs of
ratites to the United States indicate the number of ratite laying hens
in the flock of origin. We are also revising Sec. 92.101(b)(3)(i)(I) to
require that the production ceiling be adjusted according to changes in
the number of laying hens in the flock.
One commenter stated that the keeping of a control register for
identification of ratites should not necessarily be the responsibility
of the official veterinary authority of the country of exportation, but
should instead be allowed to be the responsibility of a recognized
body, as agreed upon by the APHIS Administrator. It is not clear to us
what type of ``recognized body'' the commenter is referring to. We do
not consider it appropriate for an entity other than an agency of the
national government of the country of export to maintain the required
registry. Under the regulation as written, a government agency other
than the official veterinary authority is not precluded from
maintaining the registry of premises that wish to export ratites or
hatching eggs of ratites to the United States. Therefore, we are making
no changes based on this comment.
Several commenters addressed issues outside the scope of the
interim rule, concerning functions required to be carried out by
veterinarians in the country from which the ratites or hatching eggs
are to be exported. The functions the commenters addressed were already
required under the regulations prior to publication of the interim
rule.
Miscellaneous
We are making a wording correction to Sec. 92.104(c)(14). The
provisions in Sec. 92.104(c) pertain to ratites other than hatching
eggs that are intended for importation into the United States. However,
in Sec. 92.104(c)(14) of our interim rule, we made reference to
``hatching eggs'' when our intent, consistent with the rest of
Sec. 92.104(c), was to refer to ``ratites.'' In this final rule, we are
correcting this reference.
In this final rule, we are also making several nonsubstantive
changes to part 92, to update addresses in footnotes and to correct an
incorrect paragraph reference.
Therefore, based on the rationale set forth in the interim rule and
in this document, we are adopting the provisions of this interim rule
as a final rule, with the changes discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This final 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 final rule requires that foreign producers of ratites or
ratite hatching eggs intended for importation into the United States
identify all ratite eggs in the flock as to premises and country. It
also requires that such identification be certified on an export
certificate, that the export certificate also indicate the number of
ratite laying hens in the flock, and that the production ceiling for a
flock be adjusted according to changes in the number of laying hens in
the flock.
At present 99 ratite farms in 13 countries are approved to ship
ratites or ratite hatching eggs to the United States. The number of
approved foreign farms varies each month due to annual recertification
requirements.
We anticipate that requiring the identification and certification
set forth in this rule will have little or no economic impact. Hatching
eggs must already be marked on the premises of origin as to date of
production. The additional cost to also identify the hatching eggs as
to premises and country is expected to be negligible. Also, the
certification required by this rule is in addition to certification
already required on an export certificate, and is expected to have
little or no economic impact.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
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 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.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
et seq.), the information collection or recordkeeping requirements
included in this rule have been submitted for approval to the Office of
Management and Budget.
List of Subjects in 9 CFR Part 92
Animal disease, Imports, Livestock, Poultry and poultry products,
Quarantine, Reporting and recordkeeping requirements.
Accordingly, the interim rule amending 9 CFR part 92 that was
published at 59 FR 10729-10734 on March 6, 1994, is adopted as a final
rule with the following changes:
PART 92--IMPORTATION OF CERTAIN ANIMALS AND POULTRY PRODUCTS;
INSPECTION AND OTHER REQUIREMENTS FOR CERTAIN MEANS OF CONVEYANCE
AND SHIPPING CONTAINERS THEREON
1. The authority citation for part 92 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 2.17, 2.51, and 371.2(d).
2. In Sec. 92.101, paragraphs (b)(3)(i)(B) and (b)(3)(i)(C), the
second sentence of (b)(3)(i)(E), and the second sentence of
(b)(3)(i)(I) are revised to read as set forth below; paragraph
(b)(3)(i)(J) is amended by removing the reference to ``(b)(3)(i)(D) and
(b)(3)(i)(E)'' and adding ``(b)(3)(i)(B) and (b)(3)(i)(C)'' in its
place; and paragraph (b)(3)(i)(J) is amended by removing the word
``quarterly'' in the last sentence.
Sec. 92.101 General prohibitions; exceptions.
* * * * *
(b) * * *
(3) * * *
(i) * * *
(B) Each ratite produced in the flock is identified with an
identification number by means of a microchip implanted at 1-day of age
in the pipping muscle of ostriches and in the upper neck of other
ratites, each ratite added from outside the flock is identified in like
manner upon arrival in the flock, except that the microchip need not be
implanted in the pipping muscle or the upper neck, and each ratite
already in the flock as of March 8, 1994 is identified in like manner,
prior to the next visit to the flock premises by an APHIS
representative under Sec. 92.103(a)(2)(iii), except that the microchip
need not be implanted in the pipping muscle or the upper neck;
(C) On the date it is produced, each hatching egg produced in the
flock is marked in indelible ink with the date of the production, and
with identification, assigned by the national government of the country
of export, of the premises and country from which the ratites or
hatching eggs are intended for exportation;
* * * * *
(E) * * * The country of export in turn submits a copy of the
registers to the Administrator upon his or her request;2
---------------------------------------------------------------------------
\2\Copies should be mailed to Administrator, c/o Import/Export
Animals Staff, National Center for Import-Export, Veterinary
Services, APHIS, USDA, Federal Building, 6505 Belcrest Road,
Hyattsville, MD 20782.
---------------------------------------------------------------------------
* * * * *
(I) * * * The ceiling for each premises is calculated jointly by a
full-time salaried veterinary officer of the national government of the
country of export and the APHIS representative who conducts the site
visit required under Sec. 92.103(a)(2)(iii), and is adjusted jointly by
an APHIS representative and a full-time salaried veterinary officer of
the national government of the country of export according to changes
in the number of laying hens in the flock;
* * * * *
Sec. 92.103 [Amended]
3. In Sec. 92.103, footnote 9 is revised to read ``The addresses of
USDA quarantine facilities may be found in telephone directories
listing the facilities or by contacting the Administrator, c/o Import-
Export Animals Staff, National Center for Import-Export, Veterinary
Services, APHIS, USDA, Federal Building, 6505 Belcrest Road,
Hyattsville, MD 20782.''
4. Section 92.104 is amended by redesignating paragraphs (c)(15)
and (c)(16) as paragraphs (c)(16) and (c)(17), respectively; by adding
new paragraphs (c)(15) and (d)(11); and by revising paragraphs (c)(14)
and (d)(10), to read as follows:
Sec. 92.104 Certificate for pet birds, commercial birds, zoological
birds, and research birds.
* * * * *
(c) * * *
(14) That all ratites in the flock from which the ratites come were
identified in accordance with Sec. 92.101(b)(3)(i)(B), and that all
ratite hatching eggs in the flock were identified in accordance with
Sec. 92.101(b)(3)(i)(C);
(15) The number of ratite laying hens in the flock from which the
ratites come;
* * * * *
(d) * * *
(10) That all ratites in the flock from which the hatching eggs
come were identified in accordance with Sec. 92.101(b)(3)(i)(B), and
that all ratite hatching eggs in the flock were identified in
accordance with Sec. 92.101(b)(3)(i)(C).
(11) The number of ratite laying hens in the flock from which the
hatching eggs come.
Sec. 92.106 [Amended]
5. Section 92.106 is amended by revising footnote 11 to read ``A
list of approved vaccines is available from the Administrator, c/o
Import-Export Animals Staff, National Center for Import-Export,
Veterinary Services, APHIS, USDA, Federal Building, 6505 Belcrest Road,
Hyattsville, MD 20782.''
Done in Washington, DC, this 9th day of September 1994.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 94-22849 Filed 9-14-94; 8:45 am]
BILLING CODE 3410-34-P
