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Rules and Regulations Federal Register

23887 

Vol. 79, No. 82 

Tuesday, April 29, 2014 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Parts 55 and 81 

[Docket No. 00–108–11] 

RIN 0579–AB35 

Chronic Wasting Disease Herd 

Certification Program and Interstate 

Movement of Farmed or Captive Deer, 

Elk, and Moose 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are adopting as a final 

rule, with two miscellaneous changes, 

an interim final rule that established a 

herd certification program to control 

chronic wasting disease (CWD) in 

farmed or captive cervids in the United 

States. The interim final rule 

specifically requested comment on our 

policy that our CWD regulations set 

minimum requirements for the 

interstate movement of farmed or 

captive deer, elk, and moose but will 

not preempt State or local laws or 

regulations that are more restrictive than 

our regulations. This document 

responds to comments we received on 

that policy. The interim final rule was 

necessary to help to control the 

incidence of CWD in farmed or captive 

cervid herds and prevent its spread. 

DATES: Effective on April 29, 2014, we 

are adopting as a final rule the interim 

final rule published at 77 FR 35542– 

35571 on June 13, 2012. The 

amendments in this final rule are also 

effective April 29, 2014. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Patrice Klein, Senior Staff Veterinarian, 

Sheep, Goat, Cervid & Equine Health 

Center, Surveillance, Preparedness, and 

Response Services, Veterinary Services, 

APHIS, 4700 River Road Unit 43, 

Riverdale, MD 20737–1231; (301) 851– 

3435. 

SUPPLEMENTARY INFORMATION: 

Background 

Chronic wasting disease (CWD) is a 

transmissible spongiform 

encephalopathy of cervids (members of 

Cervidae, the deer family) that, as of 

May 2011, has been found only in wild 

and captive animals in North America 

and in captive animals in the Republic 

of Korea. First recognized as a clinical 

‘‘wasting’’ syndrome in 1967, the 

disease is typified by chronic weight 

loss leading to death. Species currently 

known to be susceptible to CWD via 

natural routes of transmission include 

Rocky Mountain elk, mule deer, whitetailed deer, black-tailed deer, sika deer, 

and moose. 

In the United States, as of April 2013, 

CWD has been confirmed in wild deer 

and elk in 18 States and in 40 farmed 

elk herds, 19 farmed white-tailed deer 

herds, and 1 farmed red deer herd in 13 

States. The disease was first detected in 

U.S. farmed elk in 1997. It was also 

diagnosed in a wild moose in Colorado 

in 2005. 

The presence of CWD in cervids 

causes significant economic and market 

losses to U.S. producers. Canada 

prohibits the importation of elk from 

Colorado and Wyoming and now 

requires that other cervids be 

accompanied by a certificate stating that 

CWD has not been diagnosed in the 

herd of origin. The Republic of Korea 

has suspended the importation of deer 

and elk and their products from the 

United States and Canada. The domestic 

prices for elk and deer have also been 

severely affected by fear of CWD. 

To help producers avoid the losses 

caused by CWD infection and risk, we 

determined that it was necessary to 

establish a program that would actively 

identify herds infected with CWD and 

allow producers to manage these herds 

in a way that will prevent further spread 

of CWD. Specifically, on July 21, 2006, 

we published a final rule in the Federal 

Register (71 FR 41682–41707, Docket 

No. 00–108–3; ‘‘the July 2006 final 

rule’’) that established the Chronic 

Wasting Disease Herd Certification 

Program in 9 CFR subchapter B, part 55. 

(That part had previously contained 

only regulations related to the payment 

of indemnity to the owners of CWDpositive captive herds who voluntarily 

depopulate their herds.) 

Under the July 2006 final rule, owners 

of deer, elk, and moose herds who 

choose to participate have to follow the 

program requirements of a cooperative 

State-Federal program for animal 

identification, testing, herd 

management, and movement of animals 

into and from herds. The July 2006 final 

rule also amended 9 CFR subchapter C 

by establishing a new part 81 containing 

interstate movement requirements 

designed to prevent the spread of CWD 

through the movement of farmed or 

captive deer, elk, or moose. 

After publication of the July 2006 

final rule, but before its effective date, 

the Animal and Plant Health Inspection 

Service (APHIS) received three petitions 

requesting reconsideration of several 

requirements of the rule. On September 

8, 2006, we published a notice in the 

Federal Register (71 FR 52983, Docket 

No. 00–108–4) that delayed the effective 

date of the CWD final rule while APHIS 

considered those petitions. On 

November 3, 2006, we published 

another notice in the Federal Register 

(71 FR 64650–64651, Docket No. 00– 

108–5) that described the nature of the 

petitions and made the petitions 

available for public review and 

comment, with a comment period 

closing date of December 4, 2006. We 

subsequently extended that comment 

period until January 3, 2007, in a 

Federal Register notice published on 

November 21, 2006 (71 FR 67313, 

Docket No. 00–108–6). 

We received 77 comments by that 

date. They were from cervid producer 

associations, individual cervid 

producers, State animal health agencies, 

State wildlife agencies, and others. We 

carefully considered the petitions and 

the public comments received in 

response to them. 

On March 31, 2009, we published in 

the Federal Register (74 FR 14495– 

14506, Docket No. 00–108–7; ‘‘the 

March 2009 proposed rule’’) a proposal 

to amend the July 2006 final rule. 

Specifically, we proposed to recognize 

State bans on the entry of farmed or 

captive cervids for reasons unrelated to 

CWD, increase to 5 the number of years 

an animal must be monitored for CWD 

before it may be moved interstate; 

restrict the interstate movement of 

cervids that originated from herds in 

proximity to a CWD outbreak; change 


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23888 Federal Register / Vol. 79, No. 82 / Tuesday, April 29, 2014 / Rules and Regulations 

1To view the interim final rule and the comments 

we received, go to http://www.regulations.gov/

#!docketDetail;D=APHIS-2006-0118. 

herd inventory procedures; prohibit the 

addition of animals to CWD-positive, 

-suspect, and -exposed herds; require 

States to conduct wildlife surveillance 

for CWD as part of their Approved State 

CWD Herd Certification Programs; 

provide for optional confirmatory DNA 

testing of CWD-positive samples; and 

make several other changes. 

On June 13, 2012, we published in the 

Federal Register (77 FR 35542–35571, 

Docket No. 00–108–8; ‘‘the June 2012 

interim final rule’’) an interim final 

rule 1 that set an effective date of August 

13, 2012 for the July 2006 final rule, 

with amendments as discussed in the 

March 2009 proposed rule and the June 

2012 interim final rule itself. The 

interim final rule also set a compliance 

date of December 10, 2012, for the 

interstate movement provisions in 9 

CFR part 81, to give States and 

producers time to come into compliance 

with the herd certification program 

requirements in 9 CFR part 55. 

In the June 2012 interim final rule, we 

specifically requested comments only 

on our policy with respect to 

preemption of State and local laws and 

regulations regarding CWD. Comments 

on issues other than preemption will 

not be addressed in this document, as 

the June 2012 interim final rule 

finalized the other provisions of the 

regulations. However, we are 

considering comments submitted on 

those other provisions for potential 

future rulemaking. 

Both the July 2006 final rule and the 

March 2009 proposed rule indicated 

that we would preempt State and local 

laws and regulations that were more 

restrictive than our regulations. 

However, in reviewing the comments on 

the March 2009 proposed rule, we 

decided that it would be more 

appropriate that our regulations not 

preempt State and local laws and 

regulations that are more stringent than 

our regulations. We provided one 

exception, which is that cervids that are 

eligible to move interstate may transit a 

State that bans or restricts the entry of 

such animals en route to another State, 

under certain conditions. 

We solicited comments concerning 

the preemption issue for 30 days ending 

July 13, 2012. We reopened and 

extended the deadline for comments 

until August 13, 2012, in a document 

published in the Federal Register on 

July 20, 2012 (77 FR 42625, Docket No. 

00–108–9). We received 199 comments 

by that date. They were from interested 

members of the public, producers, 

researchers, and representatives of State 

and foreign governments. They are 

discussed below by topic. 

Support for Previous Preemption Policy 

Some commenters stated that APHIS 

regulations should preempt all State and 

local regulations with respect to CWD, 

thus ensuring that State and local laws 

and regulations could not be more 

restrictive than APHIS’ regulations. 

Some of these commenters stated that 

States may use this discretion to impose 

stricter regulations than are justified, 

meaning that owners of farmed and 

captive cervids could not engage in 

interstate commerce even though they 

had met the requirements of the Federal 

CWD program. 

We decided to allow State and local 

laws and regulations with respect to 

CWD to be more restrictive than our 

regulations for multiple reasons. One of 

those reasons is that it is more difficult 

to determine with certainty what 

restrictions are justified for CWD than 

for other diseases, given our relative 

lack of knowledge about CWD. 

Importantly, there is no conclusive 

knowledge about how CWD may be 

transmitted between wild cervid 

populations and farmed and captive 

cervids. Other gaps in the available 

science about CWD also impair our 

ability to achieve eradication of CWD, 

including the lack of certainty regarding 

the disease status of individual live 

animals and the lack of knowledge 

regarding effective cleaning and 

disinfection measures for premises on 

which CWD has been found. (For 

example, no cleaning and disinfection 

measures have been proven to 

effectively address the persistence of 

CWD in substrates.) This makes it more 

difficult to determine what restrictions 

may be justified. Recognizing this 

uncertainty, we have determined that it 

is appropriate to allow States to impose 

more restrictive requirements with 

respect to CWD, based on their 

interpretation of the available evidence 

and on local conditions. 

One commenter stated that a purpose 

of the Federal CWD rules should be to 

establish national uniformity in disease 

regulation. Allowing States to impose 

more restrictive regulations undermines 

the Federal rule and essentially negates 

it. The commenter expressed particular 

concern about the difficulties that will 

arise regarding testing for CWD and 

herd compliance for interstate 

movement. 

We recognize that our preemption 

policy will not ensure national 

uniformity in CWD regulation; indeed, 

many States impose restrictions that go 

beyond APHIS’ CWD regulations. 

However, the decision not to preempt 

more restrictive State and local laws and 

regulations was also based on the fact 

that our goal for the CWD program has 

changed. As discussed in the June 2012 

interim final rule, the objective of our 

regulations is now to control the 

incidence of CWD in farmed and captive 

cervids and prevent the interstate 

spread of the disease, rather than 

eliminating CWD in farmed and captive 

cervids. Eliminating CWD from farmed 

and captive cervids is not practical 

given the persistence of CWD in wild 

cervid populations and the lack of 

knowledge about the disease discussed 

earlier. However, States may decide that 

a higher level of protection is 

appropriate in their State, and allowing 

States to establish more restrictive laws 

and regulations on farmed and captive 

cervids recognizes that States may want 

to establish a higher level of protection 

against the disease than the Federal 

program is designed to provide. 

It is important to keep in mind, both 

with respect to the comments discussed 

above and those discussed later in this 

document, that the CWD program was 

only established in the June 2012 

interim final rule, although the effort to 

establish the program goes back further. 

Changing conditions, new knowledge 

about CWD, or our experience 

administering the program could all 

lead APHIS to determine that a change 

in our preemption policy is necessary. 

We will continue to consider this issue 

as we implement the CWD program. 

Opposition to Allowing Farmed or 

Captive Cervids To Move Through 

States and Localities With More 

Restrictive Laws or Regulations 

As noted earlier, we made an 

exception to our policy of allowing State 

and local laws and regulations to be 

more restrictive than APHIS’ regulations 

to provide conditions for the interstate 

movement of farmed or captive cervids 

through a State or locality. These 

conditions preempt State and local laws 

and regulations that would otherwise 

apply to such movement through a State 

or locality. The conditions for such 

movement are: 

• The farmed or captive deer, elk, or 

moose must be eligible to move 

interstate under § 81.3. This section 

requires animals that move interstate to 

be from herds that are Certified as low 

risk for CWD, to be from wild 

populations that have been documented 

to be low risk for CWD, or to be moved 

directly to slaughter. It also provides for 

movement of research animals under 

permit, which will only be issued if the 

movement authorized will not result in 

the interstate dissemination of CWD. 


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• The farmed or captive deer, elk, or 

moose must meet the entry 

requirements of the destination State 

listed on the certificate or permit 

accompanying the animal. 

• Except in emergencies, the farmed 

or captive deer, elk, or moose must not 

be unloaded until their arrival at their 

destination. Emergencies might include 

a breakdown of the vehicle transporting 

the deer, elk, or moose or weather 

conditions that make it impossible or 

extremely unsafe for a vehicle to 

continue along its scheduled itinerary. 

Some commenters stated that States 

should have the authority to further 

regulate or ban the transit of farmed or 

captive cervids through a State en route 

to another State. 

Three commenters stated that 

movement of farmed or captive cervids 

through a State introduces risk and 

would potentially affect State efforts to 

exclude or eradicate CWD. One stated 

that State and local authorities know the 

risks and resources within their 

jurisdictions and are more suited to 

protect their resources beyond the 

protection afforded by a national 

program if required. Another stated that 

it is the prerogative of each State to 

determine the level of risk it is willing 

to accept with respect to CWD. One 

commenter stated that the interim rule 

stated that interstate movement is a low 

risk with limited exceptions, and asked 

what the exceptions are. 

While there may be some risk 

associated with the movement of farmed 

or captive cervids through a State en 

route to another State, the available 

evidence indicates that the risk is low 

in all circumstances. As discussed in 

the June 2012 interim final rule, the 

available science suggests that CWD is 

not highly infectious. In addition, the 

regulations in § 81.3 limit the interstate 

movement of farmed or captive cervids 

to animals from herds that have 

achieved Certified status as being lowrisk for CWD, with certain exceptions 

for specific movements as noted earlier. 

As discussed in the June 2012 interim 

final rule, not providing for movement 

through States that ban or further 

restrict the entry of farmed or captive 

deer, elk, or moose would also raise 

several issues. The rerouting required to 

avoid such States may make 

transportation of farmed or captive 

cervids economically unfeasible. Even if 

such transportation is economically 

feasible, the additional time necessary 

to traverse a lengthy route may raise 

animal health or welfare issues for the 

cervids being transported; the cervids 

would need regular water, feed, and 

rest, as required for all livestock under 

the Twenty-Eight Hour Law (49 U.S.C. 

80502). Captive cervids that needed to 

be offloaded for such purposes would 

not be easy to confine and to reload onto 

a conveyance. Several commenters on 

the interim final rule agreed that 

circuitous routing around States that 

ban or restrict movement raises both 

economic and animal welfare concerns. 

Given the low risk associated with 

this type of movement, and the concerns 

that not allowing such movement raises, 

we have determined that it is 

appropriate to provide for the 

movement of farmed or captive cervids 

through States and localities whose laws 

or regulations on the movement of 

captive cervids are more restrictive than 

the regulations in part 81. 

One commenter stated that the 

preemption policy does not take into 

account States’ legitimate concerns for 

captive cervid escapes through 

emergency unloading and accidents. 

As noted earlier, the regulations 

require farmed or captive cervids moved 

through a State to be eligible for 

interstate movement under part 81, and 

thus to be low risk for CWD. We do not 

believe the risk of allowing movement 

through a State outweighs the economic 

and animal welfare benefits described 

earlier. 

Two commenters stated that 

preempting State and local laws and 

regulations regarding the movement of 

farmed or captive cervids through a 

State or locality en route to another 

State was not within APHIS’ authority 

under the Animal Health Protection Act 

(AHPA, 7 U.S.C. 8301 et seq). One 

commenter elaborated that the AHPA 

gives the Secretary of Agriculture the 

authority to prohibit or restrict the 

movement in interstate commerce of 

any animal, 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 commenter stated that the 

June 2012 interim final rule does not 

prohibit or restrict movement in 

interstate commerce as authorized by 

the AHPA. 

Prior to August 13, 2012, when the 

June 2012 interim final rule became 

effective, there had been no Federal 

regulation of the interstate movement of 

farmed or captive cervids. The 

regulations in part 81, which the interim 

final rule added to 9 CFR chapter I, 

restrict the movement in interstate 

commerce of farmed or captive cervids, 

including the interstate movement of 

farmed or captive cervids through a 

State. As noted earlier, such movement 

may only occur in accordance with 

certain requirements. 

The provisions allowing for interstate 

movement through a State were 

promulgated with the AHPA in mind. In 

7 U.S.C. 8301, Congress found that the 

prevention, detection, control, and 

eradication of diseases and pests of 

animals are essential to protect animal 

health, and that regulation is also 

necessary to prevent and eliminate 

burdens on interstate commerce, among 

other things. Given the low risk 

associated with the movement through 

a State of farmed or captive cervids that 

meet the other requirements in 9 CFR 

part 81, we believe we have 

appropriately balanced our duties under 

the AHPA to prevent and control CWD 

and to prevent and eliminate burdens 

on interstate commerce. 

Additional Restrictions on Movement 

Through a State or Locality 

Some commenters asked whether 

States and localities could impose 

additional restrictions on the interstate 

movement of farmed or captive cervids 

through a State or locality, beyond those 

listed in § 81.5. 

Two commenters, both State fish and 

wildlife agencies, requested that we 

amend § 81.5 to allow for State approval 

of transport of cervids through a State. 

One of these commenters stated that the 

commenter’s State bans all 

transportation of cervids through the 

State except under a permit issued by 

that agency. The commenter stated that 

the intent of the permit was not to 

impede transit of cervids but to ensure 

that animals are properly secured 

during transport, all documentation is 

valid, and that the route taken through 

the State is as efficient and expeditious 

as possible. A third commenter asked 

whether a State could require a permit 

or an inspection of cervids moving 

through a State, or a fee for movement 

of farmed or captive cervids through a 

State. 

A State could use any kind of permit 

or inspection requirement as a de facto 

ban on the interstate movement of 

farmed or captive cervids through the 

State. For this reason, adding such a 

provision to § 81.5 could be 

counterproductive to the goal of 

facilitating interstate movement that 

poses a low risk. However, we 

encourage persons moving farmed or 

captive cervids through a State to notify 

the States through which the movement 

will occur. 

Since a State cannot require permits 

or inspections for cervids moved 

through their State en route to another 

State, as this would obstruct transiting 

that State, we assume that fees specific 

to the interstate movement of farmed or 

captive cervids through a State would 

not be necessary, as they are not for 

other livestock. 


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Two commenters recommended that 

we add requirements to address the 

potential escape of urine and feces from 

conveyances being used to move farmed 

or captive cervids interstate. One 

commenter stated that research has 

demonstrated that CWD can be 

transmitted by environmental 

transmission, and prions are excreted in 

the urine and feces of infected animals. 

The other commenter recommended 

that we also require decontamination for 

all transport vehicles and equipment 

that cross state lines and transporter 

recordkeeping to allow traceback of all 

live animals. 

We do not consider these 

requirements to be necessary to mitigate 

the low risk associated with the 

movement through a State of farmed or 

captive cervids that are eligible for 

interstate movement under 9 CFR part 

81. Such farmed or captive cervids are 

already at low risk for CWD. Wild 

cervids are unlikely to receive sustained 

exposure from urine or feces that 

inadvertently escapes a cervid transport 

vehicle moving on an interstate 

highway, for example. Decontamination 

of transport vehicles and equipment 

could be required by the receiving State 

after the animals have been offloaded at 

their destination. If the commenter is 

referring to decontamination during 

transport of a vehicle loaded with 

animals before the vehicle enters a State 

en route to its final destination, that 

would require unloading the cervids, 

which would potentially pose a greater 

risk of escape and may affect the welfare 

of the animals. Finally, all farmed or 

captive cervids moved interstate are 

required to be identified in accordance 

with § 81.2, which requires two forms of 

animal identification, one of which is 

official. Under § 81.4, the animal 

identification must be included on the 

certificate that accompanies the farmed 

or captive cervids moved interstate. 

These requirements allow for any 

traceback that should be necessary. 

Federal CWD Herd Certification 

Program 

In the first sentence of paragraph (b) 

of § 55.22, the July 2006 final rule 

provided for direct enrollment in the 

Federal CWD Herd Certification 

Program by owners as follows: 

Any owner of a farmed or captive deer, elk, 

or moose herd may apply to enroll in the 

CWD Herd Certification Program by sending 

a written request to the appropriate State 

agency, or to the veterinarian in charge if no 

Approved State CWD Herd Certification 

Program exists in the herd’s State. 

The June 2012 interim final rule 

amended this sentence to indicate that 

direct enrollment by herd owners in the 

Federal CWD Herd Certification 

Program would be subject to the 

availability of Federal funds. Such 

appropriated funding is not currently 

available. 

Three commenters expressed concern 

about what they perceived to be the 

preemptive effects of this provision. 

They stated that it conflicted with the 

overall policy of allowing States and 

localities to establish more restrictive 

regulations for CWD. Two of the 

commenters also stated that the decision 

to implement a herd certification 

program should be at the State’s 

discretion and no private individual 

should be granted the flexibility to 

circumvent State authority. One stated 

that it is unlikely that appropriated 

funds will be available. One of these 

commenters, however, stated that if the 

provision serves to qualify a cervid 

owner to export deer to another State 

that permits it, the commenter’s State 

fish and wildlife agency could assist the 

cervid owner to meet requirements 

necessary to enroll individually into the 

herd certification program. 

The last of the comments is closest to 

the intent of the provision. If a State 

prohibits cervid farming, our regulations 

will not preempt that law. Rather, this 

provision addresses the specific 

situation of a State that allows cervids 

to be farmed but does not provide a 

State CWD Herd Certification Program 

in which herd owners can participate. 

In such a case, a herd owner could 

apply to the Federal CWD Herd 

Certification Program, subject to the 

availability of Federal funding. We do 

not believe that the provision is 

ambiguous, as a person could not own 

a herd of cervids in a State where 

farming cervids was prohibited; the 

provision could only apply if a herd 

owner, operating legally in a State, had 

no State CWD Herd Certification 

Program to which he or she could apply. 

It is important to provide this option 

because only farmed or captive cervid 

herds that have reached Certified status 

under an approved herd certification 

program are eligible for interstate 

movement under 9 CFR part 81; if no 

herd certification program is available 

in a State, no farmed cervids can be 

moved interstate from that State. 

Wild Cervids 

Both the July 2006 final rule and the 

June 2012 interim final rule included 

requirements for the interstate 

movement of wild cervids. Specifically, 

paragraph (b) of § 81.3 requires captive 

cervids captured from a wild population 

for interstate movement and release to 

be accompanied by a certificate stating 

that the source population has been 

determined to be low risk for CWD, 

based on a CWD surveillance program 

in wild cervid populations that is 

approved by the State Government of 

the receiving State and by APHIS. 

One commenter stated that this 

provision preempts the authority of 

States to control the movement of wild 

cervids. 

As noted in the Background section of 

the June 2012 interim final rule, the 

Federal CWD regulations indeed set 

minimum standards for CWD control. 

We believe that these are the minimum 

standards necessary to have an effective 

CWD control program. The movement of 

wild cervids captured for interstate 

movement and release could easily 

spread CWD. As a result, we have 

determined that it is necessary to 

impose minimum restrictions on this 

movement. 

Miscellaneous Changes 

In the June 2012 interim final rule, we 

described how the goal of the CWD 

program had shifted from the 

elimination of CWD from farmed and 

captive cervids in the United States to 

controlling the incidence of CWD in 

farmed and captive cervids and 

preventing the interstate spread of CWD. 

In § 55.1, the definition of herd plan, 

established in a previous action, 

indicates that a herd plan sets out the 

steps to be taken to eradicate CWD from 

a CWD-positive herd, among other 

things. Completion of a herd plan is 

required to allow a herd enrolled in the 

Federal CWD herd certification program 

to reenroll in the program after it has 

been determined to be positive for or 

exposed to CWD. However, as the goal 

of the CWD program is no longer to 

eliminate CWD from farmed and captive 

cervids, the term ‘‘eradicate’’ may not be 

appropriate; in some cases, a herd plan 

may seek to control CWD within the 

herd, without necessarily depopulating 

the whole herd. For this reason, we are 

amending the definition of herd plan to 

indicate that such a plan will set out the 

steps to be taken to control the spread 

of CWD from a CWD-positive herd. 

Under § 81.3, cervids moved directly 

to slaughter must, among other things, 

be moved to a recognized slaughtering 

establishment. We did not include in 

the June 2012 interim final rule a 

definition of the term ‘‘recognized 

slaughtering establishment.’’ This 

omission could cause confusion. 

Accordingly, we are adding a definition 

of recognized slaughtering 

establishment to § 81.1, which reads 

‘‘An establishment where slaughtering 

operations are regularly carried out 

under Federal or State inspection and 

which has been approved by the Animal 


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and Plant Health Inspection Service to 

receive animals for slaughter.’’ This 

definition is taken from the regulations 

governing the importation of ruminants 

in § 93.400 and is consistent with the 

intended meaning of the term in § 81.3. 

Therefore, for the reasons given in the 

interim rule and in this document, we 

are adopting the interim final rule as a 

final rule, with the changes discussed in 

this document. 

This action also affirms the 

information contained in the interim 

rule concerning Executive Orders 

12866, 13563, 12372, and 12988 and the 

Paperwork Reduction Act. 

Further, this action 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. 

Regulatory Flexibility Act 

This final rule follows an interim final 

rule that established a Federal herd 

certification program for CWD and put 

in place interstate movement 

restrictions to prevent CWD from 

spreading interstate. The interim final 

rule specifically requested comments 

only on the issue of our new preemption 

policy. 

In accordance with 5 U.S.C. 604, we 

have performed a final regulatory 

flexibility analysis, which is 

summarized below, regarding the 

economic effects of this rule on small 

entities. Copies of the full analysis are 

available on the Regulations.gov Web 

site (see footnote 1 in this document for 

a link to Regulations.gov) or by 

contacting the person listed under FOR

FURTHER INFORMATION CONTACT. 

This final rule affirms prior regulatory 

actions that established a voluntary herd 

certification program for the control of 

CWD in farmed or captive cervids (deer, 

elk, and moose) in the United States. 

The program regulations include CWD 

monitoring and testing requirements, 

and set minimal requirements for 

interstate movement that will not 

preempt more restrictive State or local 

laws or regulations. At present, herd 

owners’ interstate marketing decisions 

may need to account for dissimilar State 

CWD certification regulations. 

Herd owners who choose to 

participate in the herd certification 

program will have to meet program 

requirements for animal identification, 

testing, and herd management. Other 

than for cervids moving to slaughter or 

for research, those that move interstate 

must be from Certified herds that have 

been monitored for a period of at least 

5 years and that have not been 

epidemiologically linked to herds where 

CWD has been diagnosed, or captured 

from a wild cervid population that has 

been documented to be low risk for 

CWD based on a surveillance program. 

Some herd owners may be adversely 

affected by the 5-year monitoring 

requirement for interstate movement; 

however, available research indicates 

that this minimum period of monitoring 

is necessary to provide an adequate 

level of protection against the spread of 

CWD. Most researchers agree that CWD 

manifests itself within 5 years if the 

disease is present in a herd of farmed or 

captive cervids. Many herd owners have 

been participating in State-level CWD 

herd certification programs for at least 5 

years and will have met this 

requirement as a result of being enrolled 

in a State program that becomes an 

Approved State Herd Certification 

Program in the national CWD herd 

certification program. 

Producers who participate in the herd 

certification program will be required to 

maintain a complete inventory of their 

herds, with verification by APHIS or 

State officials. A physical inventory of 

the animals will be required at the time 

a herd is enrolled in a CWD certification 

program and thereafter the animals will 

need to be physically assembled for 

inventory within 3 years of the last 

physical inventory. An annual herd 

inventory—including a review of owner 

records and an observation of the herd’s 

unrestrained animals in a viewable, 

enclosed area—will continue to be 

required, but the animals will not 

necessarily need to be physically 

assembled and restrained. 

The inventory cost is estimated to 

average about $25 to $30 per deer or elk, 

including the animals’ physical 

inventory once every 3 years and use of 

eartags for identification. (We do not 

know of any farmed or captive moose 

herds.) Values of farmed or captive deer 

and elk range widely, depending on the 

type of animal and market conditions. 

Based on average per animal values of 

$2,000 for deer and $2,200 for elk, 

annual inventory costs are estimated to 

average less than 2 percent of the value 

of farmed or captive deer and elk. 

All on-farm cervid mortalities and any 

cervids on herd inventories sent to 

slaughter and hunt facilities must be 

tested to achieve certified status. 

Thereafter, all on-farm mortalities of 

Certified cervids will be required to be 

tested for CWD to maintain Certified 

status. There also will be optional 

confirmatory DNA test provisions for 

animals that test CWD-positive. CWD 

testing will entail submission of the 

carcass or whole head for tissue 

sampling and testing, or collection of 

the tissue samples by State officials, 

APHIS employees, accredited 

veterinarians, or State-certified or 

-designated CWD sample collectors. The 

estimated cost is about $150 per sample, 

equivalent to about 8 percent of the 

average value of a farmed or captive 

deer and about 7 percent of the average 

value of a farmed or captive elk. CWD 

testing of cervids is recognized by 

APHIS, the States, and cervid herd 

owners as essential to successful control 

of this disease. Owners who choose 

confirmatory DNA testing will consider 

it a benefit, as evidenced by their 

payment for this voluntary, optional 

test. 

Most cervid operations are small 

entities. The rule will have a positive 

overall economic impact on affected 

entities large and small, and for the U.S. 

cervid industries generally, in 

controlling the spread of CWD and 

facilitating interstate and international 

trade in cervids and cervid products. 

List of Subjects 

9 CFR Part 55 

Animal diseases, Cervids, Chronic 

wasting disease, Deer, Elk, Indemnity 

payments, Moose. 

9 CFR Part 81 

Animal diseases, Cervids, Deer, Elk, 

Moose, Quarantine, Reporting and 

recordkeeping requirements, 

Transportation. 

Accordingly, the interim final rule 

amending 9 CFR parts 55 and 81 that 

was published at 77 FR 35542–35571 on 

June 13, 2012, is adopted as a final rule 

with the following changes: 

PART 55—CONTROL OF CHRONIC 

WASTING DISEASE 

■ 1. The authority citation for part 55 

continues to read as follows: 

Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22, 

2.80, and 371.4. 

§ 55.1 [Amended] 

■ 2. In § 55.1, the definition of herd plan 

is amended by removing the word 

‘‘eradicate’’ and adding the words 

‘‘control the spread of’’ in its place. 

PART 81—CHRONIC WASTING 

DISEASE IN DEER, ELK, AND MOOSE 

■ 3. The authority citation for part 81 

continues to read as follows: 

Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22, 

2.80, and 371.4. 

■ 4. In § 81.1, a new definition of 

recognized slaughtering establishment is 

added in alphabetical order to read as 

follows: 

§ 81.1 Definitions. 

* * * * * 


sroberts on DSK5SPTVN1PROD with RULES
23892 Federal Register / Vol. 79, No. 82 / Tuesday, April 29, 2014 / Rules and Regulations 

Recognized slaughtering 

establishment. An establishment where 

slaughtering operations are regularly 

carried out under Federal or State 

inspection and which has been 

approved by the Animal and Plant 

Health Inspection Service to receive 

animals for slaughter. 

Done in Washington, DC, this 24th day of 

April 2014. 

Kevin Shea, 

Administrator, Animal and Plant Health 

Inspection Service. 

[FR Doc. 2014–09714 Filed 4–28–14; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Grain Inspection, Packers and 

Stockyards Administration 

9 CFR Part 201 

Scales; Accurate Weights, Repairs, 

Adjustments or Replacements After 

Inspection 

AGENCY: Grain Inspection, Packers and 

Stockyards Administration, USDA. 

ACTION: Direct final rule. 

SUMMARY: The Grain Inspection, Packers 

and Stockyards Administration (GIPSA) 

Packers and Stockyards Program (PSP) 

is incorporating by reference ‘‘2013 

edition of the NIST Handbook 44’’ and 

to require that the scales used by 

stockyard owner, market agencies, 

dealers, packers, and live poultry 

dealers to weigh livestock, livestock 

carcasses, live poultry, or feed for the 

purpose of purchase, sales acquisitions, 

payment, or settlement meet applicable 

requirements of the 2013 edition of the 

NIST Handbook 44. 

DATES: This rule is effective June 30, 

2014. The incorporation by reference of 

certain publications in this rule is 

approved by the Director of the Federal 

Register as of June 30, 2014. Comments 

are due May 29, 2014. If adverse 

comments are received, GIPSA will 

publish a timely withdrawal of the rule 

in the Federal Register. 

ADDRESSES: We invite you to submit 

comments on this direct final rule by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Mail: Send hardcopy written 

comments to Irene Omade, GIPSA, 

USDA, 1400 Independence Avenue 

SW., Room 2530–S, Washington, DC 

20250. 

• Hand Delivery or Courier: Deliver 

comments to Irene Omade, GIPSA, 

USDA, 1400 Independence Avenue 

SW., Room 2530–S, Washington, DC 

20250. 

• Fax: Send comments by facsimile 

transmission to: (202) 690–2173. 

Instructions: All comments will 

become a matter of public record and 

should be identified as ‘‘NIST 

Handbook 44 IBF Comments,’’ making 

reference to the date and page number 

of this issue of the Federal Register. 

Comments will be available for public 

inspection at http://

www.regulations.gov and in the above 

office during regular business hours (7 

CFR 1.27(b)). Please contact the GIPSA 

Management and Budget Services at 

(202) 720–8479 to make an appointment 

to read the comments received. 

FOR FURTHER INFORMATION CONTACT: S. 

Brett Offutt, Director, Policy and 

Litigation Division by Email at 

s.brett.offutt@usda.gov, or by telephone 

at (202) 720–7363. 

SUPPLEMENTARY INFORMATION: 

Background 

The Grain Inspection, Packers and 

Stockyards Administration (GIPSA) 

enforces the Packers and Stockyards Act 

(P&S Act) and those regulations 

necessary to carry out provisions of the 

P&S Act. The regulated entities are 

stockyard owners, swine contractors, 

market agencies, dealers, packers, and 

live poultry dealers. GIPSA issued 

regulations covering devices that 

regulated entities use for weighing and 

grading livestock and poultry. The 

purpose for these regulations is to 

ensure fairness and accuracy in the 

determination of prices the regulated 

entities pay for livestock and poultry. 

Title 9, CFR 201.71(a) incorporates by 

reference the National Institute of 

Standards and Technology (NIST) 

Handbook 44 to regulate devices used 

by regulated entities to weigh or grade 

livestock or poultry. Currently, 9 CFR 

201.71(a) incorporates by reference the 

2009 edition of NIST Handbook 44, 

‘‘Specifications, Tolerances, and Other 

Technical Requirements for Weighing 

and Measuring Devices.’’ The 2009 

edition included the ‘‘tentative’’ status 

of code to regulate the weighing and 

measuring devices used by regulated 

entities. In July 2012, the National 

Conference on Weights and Measures 

took action to change the ‘‘tentative’’ 

code to ‘‘permanent’’. Since the 

‘‘tentative’’ code has become 

‘‘permanent’’ in the 2013 edition of 

Handbook 44, effective January 1, 2013, 

GIPSA is amending 9 CFR 201.71(a) to 

incorporate by reference the 2013 

edition of Handbook 44. 

Direct Final Action 

Pursuant to 5 U.S.C 553, it is found 

and determined upon good cause that it 

is impracticable, unnecessary, and 

contrary to public interest to give 

preliminary notice prior to putting this 

direct final rule in effect because GIPSA 

regularly updates this section of the P&S 

Act regulations to incorporate by 

reference NIST Handbook 44. Further, 

GIPSA views this action as 

noncontroversial and anticipates no 

adverse public comment. This rule will 

be effective, as published in this 

document, 30 days after the date of 

publication in the Federal Register, 

unless GIPSA receives written adverse 

comments or written notice of intent to 

submit adverse comments within 30 

days of the date of publication of this 

rule in the Federal Register. Adverse 

comments are considered to be those 

comments that suggest the rule should 

not be adopted or suggest the rule 

should be changed. 

If GIPSA receives written adverse 

comments or written notice of intent to 

submit adverse comments, we will 

publish a notice in the Federal Register 

withdrawing this rule before the 

effective date. GIPSA will then publish 

a proposed rule for public comment. 

Following the close of that comment 

period, the comments will be 

considered thoughtfully, and a final rule 

addressing the comments will be 

published. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This 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. 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (5 

U.S.C. 601–612), GIPSA has determined 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. GIPSA has 

determined that most regulated entities 

are complying with the current 2013 

edition of Handbook 44 since State 

weights and measures departments 

already impose the standards. Since 

regulated entities are required under 

States law to comply with NIST 

Handbook 44, there are no new costs or 

burden to comply with those standards. 

Executive Order 12988 

This direct final rule has been 

reviewed under Executive Order 12988, 

Civil Justice Reform. These actions are 

not intended to have retroactive effect. 

This direct final rule would not preempt 

any State or local laws, or regulations, 


sroberts on DSK5SPTVN1PROD with RULES