35542 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Parts 55 and 81 

[Docket No. 00–108–8] 

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: Interim final rule and request 

for comments. 

SUMMARY: We are amending a final rule, 

which will take effect when these 

amendments become effective, that will 

establish a herd certification program to 

control chronic wasting disease (CWD) 

in farmed or captive cervids in the 

United States. Under that rule, owners 

of deer, elk, and moose herds who 

choose to participate in the CWD Herd 

Certification Program would have to 

follow requirements for animal 

identification, testing, herd 

management, and movement of animals 

into and from herds. This document 

amends that final rule to provide that 

our regulations will 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 requests 

public comment on that change. This 

document also amends the final rule to 

require farmed or captive deer, elk, and 

moose to participate in the Herd 

Certification Program and to be 

monitored for CWD for 5 years before 

they can move interstate, clarify our 

herd inventory procedures, establish an 

optional protocol for confirmatory DNA 

testing of CWD-positive samples, add a 

requirement to continue testing cervids 

that are killed or sent to slaughter from 

Certified herds, and make several other 

changes. These actions will help to 

control the incidence of CWD in farmed 

or captive cervid herds and prevent its 

spread. 

DATES: Effective Date: This interim final 

rule is effective August 13, 2012. 

Additionally, the effective date of FR 

Doc 06–6367, published on July 21, 

2006 (71 FR 41682–41707), and delayed 

by FR Doc E6–14861, published on 

September 8, 2006 (71 FR 52983), is 

now August 13, 2012. 

Compliance Date: The date for 

complying with 9 CFR part 81 is 

delayed until December 10, 2012. The 

compliance date for 9 CFR part 55 is 

August 13, 2012. 

Comment Date: We will consider all 

comments on the subject of preemption 

of State and local laws and regulations 

regarding chronic wasting disease that 

we receive on or before July 13, 2012. 

We will consider comments we receive 

during the comment period for this 

interim final rule. After the comment 

period closes, we will publish another 

document in the Federal Register. The 

document will include a discussion of 

any comments we receive and any 

amendments we are making to the rule. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/ 

#!documentDetail;D=APHIS-2006-0118- 

0199. 

• Postal Mail/Commercial Delivery: 

Send your comment to Docket No. 00– 

108–8, Regulatory Analysis and 

Development, PPD, APHIS, Station 3A– 

03.8, 4700 River Road Unit 118, 

Riverdale, MD 20737–1238. 

Supporting documents and any 

comments we receive on this docket 

may be viewed at http:// 

www.regulations.gov/ 

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

in our reading room, which is located in 

Room 1141 of the USDA South 

Building, 14th Street and Independence 

Avenue SW., Washington, DC. Normal 

reading room hours are 8 a.m. to 4:30 

p.m., Monday through Friday, except 

holidays. To be sure someone is there to 

help you, please call (202) 799–7039 

before coming. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Patrice Klein, Senior Staff Veterinarian, 

National Center for Animal Health 

Programs, Veterinary Services, APHIS, 

4700 River Road Unit 43, Riverdale, MD 

20737–1231; (301) 851–3435. 

SUPPLEMENTARY INFORMATION: 

Comment Subject Area 

This interim final rule with request 

for comments discusses our decision not 

to preempt State and local laws and 

regulations that are more restrictive than 

our regulations with respect to chronic 

wasting disease, except to allow transit 

of deer, elk, and moose that are 

otherwise eligible for interstate 

movement through States with more 

restrictive laws and regulations, in 

section III of the Background section 

under the heading ‘‘APHIS’ Decision 

Not to Preempt More Restrictive State 

Requirements on Farmed or Captive 

Cervids With Respect to CWD.’’ We will 

consider all comments that we receive 

on this subject that are received by the 

date and time indicated in the DATES

section of this interim final rule with 

request for comments. 

Background 

I. Purpose of the Regulatory Action 

a. Need for the Regulatory Action 

Chronic wasting disease (CWD) is a 

transmissible spongiform 

encephalopathy (TSE) 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, white-tailed deer, blacktailed deer, sika deer, and moose. 

In the United States, as of March 

2012, CWD has been confirmed in wild 

deer and elk in 16 States and in 39 

farmed elk herds and 15 farmed or 

captive white-tailed deer herds in 11 

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 would have to 


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Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations 35543 

1To view the proposed rule and the comments 

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

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2006-0118. 

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, 

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 1

to amend the July 2006 final rule. We 

proposed to amend the July 2006 final 

rule by recognizing State bans on the 

entry of farmed or captive cervids for 

reasons unrelated to CWD, increasing to 

5 the number of years an animal must 

be monitored for CWD before it may be 

moved interstate; restricting the 

interstate movement of cervids that 

originated from herds in proximity to a 

CWD outbreak; changing herd inventory 

procedures; prohibiting the addition of 

animals to CWD-positive, -suspect, and 

-exposed herds; requiring States to 

conduct wildlife surveillance for CWD 

as part of their Approved State CWD 

Herd Certification Programs; providing 

for optional confirmatory DNA testing of 

CWD-positive samples; and making 

several other changes. 

This final rule sets an effective date 

for the July 2006 final rule and makes 

changes to it based on the March 2009 

proposal and on the comments we 

received on that proposal. 

b. Legal Authority for the Regulatory 

Action 

Under the Animal Health Protection 

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

Secretary of Agriculture has the 

authority to issue orders and promulgate 

regulations to prevent the introduction 

into the United States and the 

dissemination within the United States 

of any pest or disease of livestock. The 

Animal and Plant Health Inspection 

Service’s (APHIS’) regulations in 9 CFR 

subchapter B govern cooperative 

programs to control and eradicate 

communicable diseases of livestock. 

The regulations in 9 CFR subchapter C 

establish requirements for the interstate 

movement of livestock to prevent the 

dissemination of diseases of livestock 

within the United States. 

II. Summary of the Major Provisions of 

the Regulatory Action 

The CWD Herd Certification Program 

is a cooperative effort between APHIS, 

State animal health and wildlife 

agencies, and deer, elk, and moose 

owners. APHIS coordinates with these 

State agencies to encourage deer, elk, 

and moose owners to certify their herds 

as low risk for CWD by being in 

continuous compliance with the CWD 

Herd Certification Program standards. 

Under subchapter B of part 55, States 

that participate in the CWD Herd 

Certification Program must establish 

State programs that are approved by 

APHIS. We will approve such programs 

if the State: 

• Establishes movement restrictions 

on CWD-positive, CWD-suspect, and 

CWD-exposed animals, to prevent the 

spread of the disease, and requires 

testing of such animals. 

• Conducts traceback on such 

animals, to determine what other 

animals may be affected. 

• Requires testing of all animals that 

die or are killed. As we do not have liveanimal tests for CWD, it is important to 

sample and test carcasses whenever 

possible to accurately evaluate the CWD 

risk in a herd. 

• Maintain premises and animal 

identification for all herds participating 

in the CWD Herd Certification Program 

in the State. This is an integral part of 

being able to conduct traceback. 

Herd owners will be approved to 

participate under State CWD Herd 

Certification Programs if they: 

• Identify each animal in their herds 

through approved means of 

identification and maintain a complete 

inventory of the herd. These 

requirements are also integral to 

conducting traceback. Upon request by 

APHIS or the State, owners must also 

allow officials to conduct a herd 

inventory to verify the records. 

• Add to their herds only animals 

that are from herds enrolled in the CWD 

Herd Certification Program, to ensure 

that animals added to herds are of 

known risk. 

• Maintain perimeter fencing 

adequate to prevent ingress or egress of 

cervids, to prevent CWD from being 

spread through contact with wild 

cervids. 

• Report to APHIS or the State all 

animals that escape or disappear, and 

report to APHIS or the State all animals 

that die or are killed and make their 

carcasses available for tissue sampling 

and testing. 

Herds are given a status based on the 

date they enrolled in the program. Herds 

that do not have any CWD-infected or 

CWD-exposed animals for 5 years will 

be granted Certified status. (Herd 

owners who participate in State CWD 

Herd Certification Programs that are 

approved by APHIS will be credited for 

the time they have participated in such 

a program towards the 5-year 

requirement.) Based on current science, 

5 years of surveillance is a reasonable 

time period to determine whether the 

disease is present in the herd, as CWD 

has an incubation period. Thus, the 

movement of animals from a Certified 

herd poses a low risk of spreading CWD. 

The movement restrictions in 9 CFR 

part 81 therefore allow deer, elk, and 

moose from Certified herds to move 

interstate. They also allow the interstate 

movement of wild animals captured for 

interstate movement or release, if 

identified with two forms of animal 

identification, including one official 

identification, and if the source 

population has been documented to be 

low risk for CWD based on a 

surveillance program. The part also 

allows the interstate movement of 

animals moved for slaughter; research 

animals; and other animals on a case-bycase basis. Finally, this part includes 

provisions under which deer, elk, or 

moose that are eligible to move 

interstate may transit a State that bans 

or restricts the entry of such animals en 

route to another State. 

A detailed discussion of the 

provisions of 9 CFR part 55, subchapter 

B, and 9 CFR part 81 is available in the 

July 2006 final rule. This document 

concentrates on the changes we are 

making to the July 2006 final rule 


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2For more information on this plan, see http:// 

www.aphis.usda.gov/about_aphis/ 

programs_offices/veterinary_services/ 

vision_science.shtml. 

subsequent to the March 2009 proposed 

rule and in response to comments. The 

major changes we are making are: 

• The March 2009 proposal indicated 

that the goal of the CWD program was 

to eliminate the disease in farmed or 

captive cervids. We have now 

determined that our goal is to control 

the spread of the disease. The 

persistence of CWD in wild cervid 

populations and our current lack of 

knowledge about the transmission of 

CWD have made the goal of eliminating 

CWD from farmed or captive cervids 

impractical. 

• Our CWD regulations will set 

minimum standards for State CWD Herd 

Certification Programs and for the 

interstate movement of cervids. The 

March 2009 proposal indicated that we 

would preempt State and local laws and 

regulations that were more restrictive as 

well. However, we have since decided 

that our regulations will not preempt 

State and local laws and regulations that 

are more stringent than our regulations, 

except that (as noted earlier) 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. We are soliciting public 

comment on this decision, as described 

below under the heading ‘‘APHIS’ 

Decision Not to Preempt More 

Restrictive State Requirements on 

Farmed or Captive Cervids With Respect 

to CWD.’’ 

• The March 2009 proposed rule 

included some proposed provisions 

designed to give States options to 

regulate CWD within the context of 

Federal preemption of State and local 

laws and regulations, such as allowing 

States to prohibit entry of cervids for 

reasons unrelated to CWD and because 

of proximity to findings of CWD in 

wildlife. We are not including those 

provisions in this final rule because 

they are no longer necessary given our 

decision on preemption. 

• Because our goal is now to control 

the spread of CWD rather than to 

eliminate it, we are not requiring States 

to conduct surveillance for CWD in wild 

cervid populations or requiring States to 

prohibit the addition of animals to herds 

containing CWD-positive, CWDexposed, or CWD-suspect animals. 

• Based on comments on the March 

2009 proposed rule, we are removing an 

exemption in the July 2006 final rule 

under which Certified herds were not 

required to make animals that were sent 

for slaughter or killed on shooter 

operations available for testing. We are 

also making several minor changes to 

improve the clarity of the changes we 

proposed and of the regulations. 

III. Discussion of Comments 

We solicited comments concerning 

the March 2009 proposal for 60 days 

ending July 1, 2009. We received 78 

comments by that date. They were from 

producers, researchers, and 

representatives of State governments. 

They are discussed below by topic. 

General Opposition to the CWD Herd 

Certification Program 

Several commenters recommended 

that we withdraw the July 2006 final 

rule, rather than making changes to it as 

described in the proposal and issuing a 

revised final rule. These commenters 

stated that designing a Federal program 

for control of CWD in captive cervids is 

about a decade too late to be useful. The 

commenters doubted that, at this point 

in time, the Federal program as 

described would materially improve 

CWD control beyond what has already 

been achieved by the collective 

coordinated efforts of State animal 

health and wildlife management 

agencies. Rather, the commenters stated, 

options for providing Federal assistance 

to States would be most beneficial and 

efficient. Commenters also stated that, 

under this approach, many of the key 

elements of the Federal CWD Herd 

Certification Program could still be 

provided by APHIS to the States as 

guidance for establishing or refining 

their respective CWD control programs. 

We have determined that a voluntary 

Federal CWD program is necessary to 

give States from which farmed or 

captive cervids are moved interstate and 

herd owners who move farmed or 

captive cervids interstate the 

opportunity to demonstrate that they 

meet minimum standards for CWD 

management. These minimum standards 

are necessary for an effective CWD 

program. Guidelines for a CWD 

program, rather than mandatory 

requirements, would not be sufficient to 

ensure that the CWD program is 

effective. 

Accordingly, this final rule announces 

our intention to amend the July 2006 

final rule and set an effective date for 

the amended final rule of August 13, 

2012. The regulatory text at the end of 

this document includes the complete 

text of the July 2006 final rule, as 

amended by this final rule. The changes 

to the July 2006 final rule are described 

in the March 2009 proposed rule and 

the Background section of this 

document. 

We agree with the commenters that 

circumstances relevant to a Federal 

CWD program have changed over time, 

necessitating a change in the objective 

of the CWD program. In the July 2006 

final rule and the March 2009 proposed 

rule, as well as all our previous CWDrelated rules, the stated objective of the 

CWD program was the elimination of 

CWD from captive and farmed cervids 

in the United States. We have now 

concluded, however, that our CWD 

objective should be to establish a herd 

certification program for herd owners 

and States to control the incidence of 

CWD in farmed and captive cervids and 

prevent the interstate spread of CWD. 

We have concluded that elimination of 

CWD from farmed and captive cervids is 

not practical given the persistence of 

CWD in wild cervid populations and 

our current lack of knowledge about 

how CWD may be transmitted between 

wild cervid populations and farmed and 

captive cervids. The CWD Herd 

Certification Program will allow States 

and herd owners to monitor herds of 

farmed and captive cervids to ensure 

that they are at low risk for CWD, and 

our regulations in part 81 will allow 

only farmed or captive deer, elk, and 

moose from herds that have reached 

Certified status in the CWD Herd 

Certification Program, after 5 years of 

monitoring, to be moved interstate, with 

limited exceptions. 

A few commenters stated that the 

position that a Federal CWD program is 

unnecessary is in keeping with APHIS’ 

overall intent to phase out regulatory 

efforts for ‘‘program diseases’’ in the 

coming decade. 

We assume the commenters are 

referring to our plans for the strategic 

future of APHIS’ Veterinary Services 

(VS) program,2 in which we have stated 

that VS will increase its focus on 

disease prevention, preparedness, 

detection, and early response. Our plans 

also acknowledge that several major 

disease control and eradication 

programs are either complete or nearing 

completion. However, we do not 

contemplate APHIS phasing out 

administration of the disease control 

and eradication programs to which the 

commenters referred, but rather 

redirecting resources as necessary to 

accomplish new objectives based on 

new circumstances. We will continue to 

administer disease control and 

eradication programs, including the 

CWD Herd Certification Program. 

One commenter stated that the 

proposed rule will fail to adequately 

control CWD in farmed or captive 

cervids in the United States. The 

commenter cited increases in positive 

tests of farmed and captive cervids for 


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CWD and additional States in which 

CWD has been found in captive herds 

since December 2003, when the initial 

proposed rule to establish the CWD 

Herd Certification Program was 

published. The commenter stated that, if 

the goal of the CWD Herd Certification 

Program is to eliminate CWD from 

captive cervid herds, stricter controls 

must be in place to prevent further 

spread of the disease. For example, the 

commenter stated, it is possible for a 

captive cervid facility to earn Certified 

status, thus allowing animals from the 

herd to be moved interstate, without 

testing a single animal for CWD. 

The suspension of the effective date of 

the July 2006 final rule means that 

States and herd owners have not been 

required to comply with its provisions. 

The CWD Herd Certification Program 

we are establishing imposes new 

controls on the interstate movement of 

deer, elk, and moose. The requirements 

for interstate movement and herd 

certification in the July 2006 final rule, 

with the modifications discussed in the 

March 2009 proposal and in this 

document, will help prevent the spread 

of CWD. 

With respect to the commenter’s 

specific concern regarding the July 2006 

final rule, § 55.23(b)(3) requires herd 

owners to inform an APHIS or State 

representative regarding all animals that 

die (including animals killed on 

premises maintained for hunting and 

animals sent to slaughter) and to make 

the carcasses of the animals available for 

tissue sampling and testing in 

accordance with instructions from the 

APHIS or State representative. We 

expect that we will test all samples that 

will be provided to us. If a herd had no 

mortality for 5 years, which is unlikely, 

it could reach Certified status without 

having animals tested. However, given 

our current knowledge about the biology 

of CWD, there is a low risk that CWD 

will be present in a herd after 5 years 

of monitoring with no mortality. In 

addition, continued surveillance will be 

required for any Certified herd to retain 

its Certified status. 

APHIS’ Decision Not To Preempt More 

Restrictive State Requirements on 

Farmed or Captive Cervids With Respect 

to CWD 

In the Background section of the July 

2006 final rule, under the heading 

‘‘Executive Order 12988,’’ we stated that 

the July 2006 final rule preempted all 

State and local laws and regulations that 

were in conflict with it. Our intent was 

to establish uniform requirements that 

would apply to the interstate movement 

of farmed or captive cervids to each of 

the States. 

The petitions we received and made 

available with the November 2006 

notice indicated strong opposition to 

Federal preemption of State restrictions 

on farmed and captive cervids with 

respect to CWD. We considered the 

petitions, and the comments on the 

petitions, in developing the proposed 

rule we published in the Federal 

Register on March 31, 2009. We also 

received several comments on the 

March 2009 proposal addressing 

whether the Federal CWD requirements 

should preempt inconsistent State 

requirements. 

As discussed earlier, we have now 

concluded that our objective with 

respect to CWD should be to establish 

a herd certification program for herd 

owners and States to control the 

incidence of CWD in farmed and captive 

cervids and prevent the interstate 

spread of CWD, as elimination of CWD 

from farmed and captive cervids is not 

practical. Accordingly, these CWD 

regulations will set mandatory 

minimum requirements for interstate 

movement of farmed or captive cervids 

with respect to CWD; they will not 

preempt State and local laws and 

regulations on CWD in farmed or 

captive cervids when those laws and 

regulations are more restrictive than the 

Federal regulations. (The only exception 

is with respect to the movement of 

farmed or captive cervids through a 

State, as discussed later in this 

document.) 

This approach will ensure that there 

are minimum requirements applicable 

to the interstate movement of farmed or 

captive cervids, while also allowing 

State and local laws, regulations, and 

policies to impose additional 

requirements on farmed or captive 

cervids as necessary to address local 

needs. We believe this approach is 

appropriate for CWD, where we have 

limited methods for diagnosing the 

disease and preventing its spread and 

where the goal of the program is to 

control, rather than eradicate, the 

disease. 

Several commenters focused on the 

issue of State wildlife management 

authority. These commenters stated that 

States must retain authority to regulate 

and manage wildlife resources more 

stringently if they feel that risks are not 

adequately mitigated by the Federal 

program. The commenters specifically 

cited banning movement of captive 

cervids into a State for any reason, 

including risks related to CWD. 

The CWD Herd Certification Program 

seeks to control CWD in farmed or 

captive cervids. We are not imposing 

requirements on States with respect to 

management of wild cervid populations, 

except when those populations could 

pose a disease risk to farmed or captive 

cervids, such as the translocation of 

wild cervids from wild populations that 

have not been assessed for CWD. As 

long as they do not affect farmed or 

captive cervids, State and local laws and 

regulations related to management of 

wild cervid populations are not affected 

by the CWD regulations. The only 

provision of the July 2006 final rule that 

relates to wild cervids is a requirement 

that animals captured from wild 

populations for interstate movement 

and release be accompanied by a 

certificate documenting the source 

population to be low risk for CWD, 

based on a CWD surveillance program 

that is approved by the State 

government of the receiving State and 

by APHIS. This requirement is directly 

related to and necessary for preventing 

the introduction of CWD into farmed or 

captive cervid populations, although it 

provides some protection for wild 

cervid populations as well. 

Note: The July 2006 final rule contained 

requirements in § 81.3(b) for interstate 

movement of captive cervids that were 

captured from free-ranging populations. In 

this final rule, we are changing the 

description of these populations to ‘‘wild 

populations,’’ as farmed or captive cervids 

may range freely on their premises without 

being considered ‘‘free-ranging’’ for the 

purposes of the regulations. We are also 

replacing references to ‘‘free-ranging’’ in the 

definitions of farmed or captive in §§ 55.1 

and 81.1 with references to ‘‘wild,’’ changing 

the order of the wording in the phrase 

‘‘captured for interstate movement and 

release from a wild population’’ in § 81.3(b) 

to ‘‘captured from a wild population for 

interstate movement and release,’’ and 

clarifying § 81.3(b) to indicate that it requires 

a CWD surveillance program for wild cervid 

populations in order to allow the interstate 

movement of cervids captured from wild 

populations. These changes are intended to 

improve the clarity of the regulations. 

Discussions of wild cervid populations in the 

remainder of the Background section of this 

rule reflect this change. 

Several commenters also expressed 

concern regarding classifying farmed or 

captive cervids as livestock. These 

commenters noted that APHIS’ 

authority to prevent, control, or 

eradicate diseases, pursuant to the 

AHPA, specifically refers to livestock. 

These commenters pointed out that that 

the legal definition of livestock is highly 

variable among States; many States do 

not define captive native species as 

‘‘livestock,’’ since livestock is not 

always within the sole jurisdiction of 

their fish and wildlife agencies. Thus, 

the commenters stated, in some 

instances captive cervids of native 

species may not fall within the Federal 

definition of livestock. The commenters 


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recommended removing the references 

to livestock in the regulations or 

yielding to a State’s definition when 

referring to cervids in this way. 

We appreciate the commenters’ 

concerns. Clearly, farmed and captive 

cervids are not traditional livestock; 

they are often referred to as alternative 

livestock. We understand that State fish 

and wildlife agencies in many States are 

responsible for the management of all 

cervids within their State, not just those 

that are wild but also those held on 

farms or in other captive situations. 

Nonetheless, these agencies may not 

have experience working within the 

context of a program designed to control 

an animal disease in farmed or captive 

animal populations. 

The AHPA charges the U.S. 

Department of Agriculture with the 

responsibility of controlling or 

eradicating any pest or disease of 

livestock, and defines ‘‘livestock’’ 

broadly as ‘‘all farm-raised animals.’’ 

This means that all farmed or captive 

cervids fall under the AHPA definition 

of livestock. Under this authority, we 

have determined that it is appropriate to 

establish requirements for the interstate 

movement of farmed or captive cervids 

to help prevent the spread of CWD. To 

the extent that State fish and wildlife 

agencies are responsible for farmed or 

captive cervids in their States, they will 

need to cooperate with APHIS in the 

administration of the CWD regulations. 

We will work with State fish and 

wildlife agencies to help them to 

understand their responsibilities and to 

ensure that we can cooperate well. It is 

important to reiterate that States retain 

the authority to manage fish and 

wildlife populations, including wild 

cervids, under this final rule. 

Several commenters urged the 

adoption of regulations that would 

preempt State and local laws and 

regulations on farmed or captive cervids 

with respect to CWD. Commenters 

noted that the movement of farmed and 

captive deer and elk has been extremely 

difficult because of a variety of different 

rules at the State level, with some States 

banning the movement of farmed or 

captive deer and elk into or through 

their States altogether. 

We understand the commenters’ 

concerns with regard to facilitating the 

interstate movement of farmed and 

captive cervids. For the reasons set forth 

below, however, we have decided that 

our CWD regulations will not preempt 

State and local laws and regulations that 

are more restrictive than our 

regulations. 

First, while the herd certification 

program and the requirements for 

interstate movement of farmed and 

captive cervids in the July 2006 final 

rule, as amended by this document, are 

supported by the best available science, 

we recognize that the methods for 

mitigating the disease are evolving; our 

current methods are limited by the 

current state of scientific knowledge. As 

such, it is not possible to create a 

uniform set of proven mitigations for 

CWD. We have determined that, in such 

circumstances, States should be able to 

implement more restrictive laws and 

regulations if they determine such laws 

and regulations to be appropriate. 

For example, one commenter stated 

that States should be able to impose 

more restrictive requirements or 

prohibitions on the interstate movement 

of farmed or captive cervids because 

there is currently no practical liveanimal test validated for white-tailed 

deer, in contrast to other diseases 

mentioned in the March 2009 proposed 

rule, such as tuberculosis and 

brucellosis. The lack of a live-animal 

test creates uncertainty about the 

disease-free status of herds, or animals 

moved interstate from herds. 

We agree the lack of a live-animal test 

for CWD creates uncertainty. Our 

approach to establishing a greater degree 

of certainty involves monitoring all 

herds enrolled in the CWD Herd 

Certification Program for at least 5 years 

before allowing animals from those 

herds to move interstate. This approach 

uses surveillance over time to increase 

the certainty that animals from a herd 

are low risk; 5 years of testing all 

cervids that die in a herd without 

finding a CWD-positive animal provides 

substantial assurance that CWD is not 

present in the herd. However, 

surveillance in the CWD Herd 

Certification Program does not provide 

the same level of certainty with respect 

to the disease status of an individual 

animal that a live-animal test could 

provide. Allowing States to impose 

more restrictive requirements than our 

requirements acknowledges that this 

uncertainty exists. 

Another commenter stated that the 

industry in the commenter’s State 

considers that State’s CWD program to 

be a benchmark after which other States’ 

programs could be modeled. The 

commenter stated that industry 

recognizes that a Federal rule is needed 

for interstate movement of registered 

animals, but expressed concern that not 

allowing the State to impose stricter 

requirements in some situations might 

not be appropriate. 

We agree that States can serve as 

laboratories for different regulatory 

approaches. In the uncertain scientific 

environment surrounding CWD, we 

welcome any additional evidence we 

can gather about the effectiveness of 

regulatory approaches. Our decision to 

allow States to impose requirements 

that are more restrictive than our 

regulations will allow States to create 

and experiment with regulatory 

programs. 

The other reason to allow States to 

develop and enforce laws and 

regulations that are more restrictive than 

our regulations is, as we noted above, 

inherent in the fact that our program 

objective has changed to reflect changes 

in conditions. When the objective of a 

program is to eliminate a disease, we 

impose requirements that are sufficient 

to achieve that objective, based on the 

best available science. If a State were to 

impose requirements that are more 

restrictive than our requirements in 

such a case, the additional State 

requirements would impede interstate 

commerce without advancing the 

objective of the program. 

However, the objective of our 

regulations is now to assist in 

controlling CWD in farmed and captive 

cervids, 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 

our current lack of knowledge about 

how CWD may be transmitted between 

wild cervid populations and farmed and 

captive cervids. Other gaps in our 

scientific knowledge we have about 

CWD also impair our ability to achieve 

eradication, including the lack of 

certainty regarding the disease status of 

individual live animals, the lack of 

knowledge regarding how the disease is 

transmitted between wild and farmed or 

captive cervid populations, and our lack 

of knowledge regarding effective 

cleaning and disinfection measures for 

premises on which CWD has been 

found. (For example, we do not know 

any cleaning and disinfection measures 

that allow us to effectively address the 

persistence of CWD in substrates.) 

For these reasons, the CWD Herd 

Certification Program and our interstate 

movement restrictions are designed to 

prevent the spread of CWD, rather than 

to eliminate it. 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. 

In this final rule, we are also 

establishing provisions for the interstate 

transportation of farmed or captive 

cervids through States in response to 

comments. These provisions will 

preempt State and local laws and 

regulations in addition to or different 


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than the requirements set forth in this 

final rule. These provisions allow 

owners of farmed or captive cervids 

(including animals captured from wild 

populations for interstate movement 

and release) to move those cervids, 

without unloading and while en route to 

another State, through States that 

prohibit or restrict the entry of farmed 

or captive cervids into their State. 

Specifically, 15 commenters asked us 

to address the issue of State bans or 

restrictions on the interstate movement 

of farmed or captive cervids through a 

State to another State of destination. 

The commenters stated that States 

should not have the right to ban 

interstate movement through a State to 

another State when the farmed or 

captive cervids being moved meet the 

entry requirements of the destination 

State. Ten of the commenters 

specifically recommended defining 

‘‘entry’’ and ‘‘import’’ as being received 

into a specific State and excluding from 

State regulation any movement through 

States that are not receiving farmed or 

captive cervids. 

We agree with these commenters that 

the regulations should provide for 

movement through a State, even if the 

State bans movement of farmed or 

captive cervids into the State. While, as 

noted, our scientific knowledge about 

CWD is limited, the scientific 

knowledge we have suggests that CWD 

is not highly infectious. In general, the 

movement of animals through a State 

without unloading poses a low risk of 

spreading CWD, and the regulations in 

part 81 ensure that the animals moved 

interstate will themselves present a low 

risk of being infected with CWD. 

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. Given 

the low risk associated with this type of 

movement, 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. 

In this final rule, a new § 81.6 

indicates that State and local laws and 

regulations that are more restrictive than 

the regulations in part 81 are not 

preempted by part 81, except for the 

regulations regarding interstate 

movement through a State to another 

State in § 81.5. 

Section 81.5 sets out the following 

provisions for farmed or captive deer, 

elk, or moose to move through a State 

or locality whose laws or regulations are 

more restrictive than those in part 81 to 

another State: 

• 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 Certified herds, 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. 

Thus, movement of animals under 

§ 81.3 already presents a low risk of 

spreading CWD, even without 

considering the low risk associated with 

the pathway of transportation through a 

State. 

• 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. 

We recognize that the decision not to 

preempt State and local laws and 

regulations with respect to CWD, except 

for deer, elk, and moose that are moved 

through a State, represents a change in 

our preemption policy, as expressed in 

the July 2006 final rule and the March 

2009 proposed rule. We believe the 

change is appropriate for the reasons 

discussed above. However, because the 

public has not previously had a chance 

to comment on this change in policy, we 

are requesting comment on our new 

policy, as well as the specific provisions 

of § 81.5. We will consider comments 

we receive during the comment period 

for this interim final rule. After the 

comment period closes, we will publish 

another document in the Federal 

Register. The document will include a 

discussion of any comments we receive 

and any amendments we are making to 

the rule. 

Although we may make changes 

based on comments, the rest of the 

Background section of this document 

assumes that the preemption policy 

described above will continue to be 

effective. 

Changes in the March 2009 Proposed 

Rule That Are Now Unnecessary 

Because the objective of the CWD 

program have changed from elimination 

of the disease in farmed and captive 

cervids to control of the spread of the 

disease, several changes we proposed in 

March 2009 are no longer necessary: 

Allowing States to prohibit entry of 

cervids for reasons unrelated to CWD. 

As noted earlier, we proposed to add to 

the July 2006 final rule a new § 81.5 

indicating that State laws and 

regulations prohibiting the entry of 

farmed or captive cervids for reasons 

unrelated to CWD are not preempted by 

9 CFR part 81. Since we are allowing 

States to prohibit the entry of farmed or 

captive cervids for reasons related to 

CWD, except with respect to movement 

through a State, the proposed section is 

no longer necessary. 

Allowing States to prohibit entry of 

farmed or captive cervids based on 

proximity to CWD in wild deer, elk, or 

moose. We proposed to add to the July 

2006 final rule provisions allowing 

States to refuse entry to farmed or 

captive cervids that originated from 

premises within 25 miles (40 km) of a 

federally or State-identified case of 

CWD in wild deer, elk, or moose, or 

within 25 miles of an area, as defined 

by APHIS and the State, where CWD has 

become established in wild deer, elk, or 

moose. As States may now impose such 

requirements, as well as other 

additional requirements, under § 81.6, 

we are not including these changes in 

this final rule. 

Requiring ongoing wildlife 

surveillance as part of an Approved 

State CWD Herd Certification Program. 

In the July 2006 final rule, paragraph (a) 

of § 55.23 lists aspects of a CWD 

program that the Administrator will 

evaluate when determining whether a 

State CWD program qualifies as an 

Approved State CWD Herd Certification 

Program. We proposed to add to this list 

that the Administrator will evaluate 

whether the State conducts monitoring 

and surveillance activities to estimate 

geographic distribution of CWD in the 

State. This requirement was included to 

ensure that States had data allowing 

them to certify that farmed or captive 

cervids moved interstate did not 

originate from premises in proximity to 

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proximity provisions in the March 2009 

proposed rule. Since we are not 

including those provisions in this final 

rule, specifically requiring that States 

conduct monitoring and surveillance 

activities to estimate geographic 

distribution of CWD in the State is no 

longer necessary. 

However, we continue to encourage 

States to conduct monitoring and 

surveillance for CWD in wildlife 

populations. Knowledge of the 

geographic distribution of CWD in 

wildlife that is generated through 

wildlife surveillance is valuable to both 

wildlife and domestic animal managers. 

The information helps both groups 

assess risk of animal movement and 

helps in other disease prevention and 

management planning. 

In addition, for deer, elk, or moose 

captured from a wild population for 

interstate movement and release, the 

regulations in § 81.3(b) require the 

certificate accompanying those animals 

to document that the animals are from 

a source population that is low risk for 

CWD, based on a CWD surveillance 

program that is approved by the State 

Government of the receiving State and 

APHIS. States that want to facilitate 

such movement will need to have a 

CWD surveillance program in place for 

their wild populations. 

In the past, APHIS has supported 

surveillance for CWD in wild cervid 

populations through cooperative 

agreements with State wildlife agencies 

and tribes. We hope that we will be able 

to continue to support wildlife 

surveillance. We anticipate that APHIS 

will receive flat or declining budgets for 

the next several years, which would 

likely substantially limit our support. 

Nonetheless, we will work with State 

wildlife agencies and tribes to develop 

more efficient and effective surveillance 

strategies for the future. 

Not allowing herds to participate in 

the CWD Herd Certification Program 

based on proximity to CWD in wild deer, 

elk, or moose. In the July 2006 final rule, 

paragraph (a) of § 55.22, ‘‘Participation 

and enrollment,’’ sets out procedures for 

owners to enroll and participate in the 

CWD Herd Certification Program. In the 

March 2009 proposed rule, we proposed 

to amend § 55.22(a) to state that an 

application for participation may be 

denied if APHIS or the State determines 

that the applicant’s herd was 

established after a subsequent final rule 

becomes effective on a premises within 

25 miles of a federally or Stateidentified case of CWD in wild deer, elk, 

or moose, or within 25 miles of an area, 

as defined by APHIS and the State, 

where CWD has become established in 

wild deer, elk, or moose. The 

requirement was proposed in 

conjunction with the other proximity 

provisions that we are not including in 

this final rule. In the proposal, we also 

stated that, while the level of risk 

associated with maintaining a CWD 

herd in proximity to known occurrences 

of CWD in wild cervids is unknown, the 

proposed prohibition on establishing 

new herds in proximity to CWD 

occurrences in the wild would add to 

the effectiveness of CWD control. 

However, commenters presented 

information indicating that the 25-mile 

distance was not necessarily enough to 

mitigate the risk of exposure to CWD, 

given the distribution and variation in 

home ranges of wild deer, elk, and 

moose, meaning that the standard might 

not effectively mitigate whatever risk 

may exist. Given that the primary 

impetus for potentially denying the 

application for participation of a herd in 

proximity to known occurrences of 

CWD in wild herds was to support the 

other proximity provisions in the March 

2009 proposed rule, and given the 

information presented by the 

commenters, we are not including this 

provision in the final rule. However, 

under this final rule, States may choose 

to address the risk associated with 

premises in areas in proximity to CWD 

cases or areas where CWD has become 

established by placing their own 

restrictions on the establishment of 

premises in such areas, based on local 

conditions. 

Finally, one commenter opposed 

preemption and specifically stated that 

States should be allowed to require 

written approval from the State 

veterinarian for any consignment of 

deer, elk, or moose to enter the State 

before it is moved interstate from its 

premises of origin. Another commenter 

generally asked us to require the State 

agency overseeing captive cervids in the 

receiving State to be notified when 

captive cervids are moved to a State. 

Our decision to allow States to impose 

additional requirements on the entry of 

captive cervids beyond those in our 

regulations allows for States to keep 

such requirements in place, or to 

impose them, as they determine to be 

necessary. 

Overlap of Federal and State 

Requirements 

Two commenters stated that the 

March 2009 proposed rule included 

various provisions for inspections and 

certification requirements that are 

duplicative of their State’s rules and 

regulations. The commenters asked 

whether the APHIS requirements are in 

addition to State regulations or if the 

State’s current practices would satisfy 

the requirements. The commenters 

expressed concern about the burden that 

could result if the APHIS requirements 

were being imposed in addition to State 

requirements. 

Another commenter requested that 

APHIS consider exemptions from 

Federal requirements for States which, 

now or in the future, develop 

comprehensive, risk-based regulatory 

CWD policies pertaining to confined 

cervid populations. 

Several States already enroll deer and 

elk herd owners in programs based on 

these principles. We believe that it is 

better to build a Federal program that 

recognizes State activities than to 

replace them with a strictly Federal 

program. Therefore, the July 2006 final 

rule allows APHIS to recognize State 

regulations and procedures as satisfying 

APHIS requirements. We believe the 

States that have or are developing CWD 

programs can readily incorporate our 

proposed minimum criteria with few or 

no changes to State programs. 

Specifically, in § 55.23, paragraph (a) 

sets out the elements necessary for a 

State to have an Approved State CWD 

Herd Certification Program. This 

paragraph sets general standards but 

does not prescribe the means for 

meeting them. If a State’s CWD program 

meets the minimum requirements in 

§ 55.23(a), we do not impose any further 

requirements on the State. Thus, State 

practices can satisfy APHIS 

requirements under the regulations. 

It is not necessary to exempt States 

that have or develop comprehensive, 

risk-based CWD regulatory policies from 

Federal requirements; such a regulatory 

policy would be recognized under 

§ 55.23(a) as an Approved State CWD 

Herd Certification Program. An 

Approved State CWD Herd Certification 

Program allows herds in that State that 

reach Certified status to move their 

animals interstate. Under this final rule, 

any farmed or captive cervids moved 

interstate will have to come from an 

Approved CWD Herd Certification 

Program, with limited exceptions. 

Definition of Official Animal 

Identification 

The July 2006 final rule included in 

§§ 55.1 and 81.1 a definition of official 

animal identification. In the March 2009 

proposed rule, we proposed to amend 

this definition to indicate that the CWD 

program allows the use of either the 

eight-character or nine-character 

identification number format for 

cervids. 

One commenter stated that approval 

for the animal identification tag in the 

commenter’s State has been requested 

several times since 2008, without 


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confirmation that the request has been 

received or is being considered. The 

commenter noted that the tag in 

question is a nine-character tag. Another 

commenter expressed general concern 

that our approval of State tags has not 

been forthcoming. 

Until the publication of this final rule, 

there has been no CWD Herd 

Certification Program in place in the 

regulations, and we have been 

concentrating on determining the 

appropriate objectives and provisions of 

the overall program. We plan to evaluate 

State animal identification for use as 

official identification as part of the CWD 

Herd Certification Program 

implementation process. We will reach 

out to these commenters to ensure that 

we are addressing their concerns, and 

we invite others who may have similar 

concerns to contact the person listed 

under FOR FURTHER INFORMATION

CONTACT. 

Definition of National Uniform 

Eartagging System 

The definition of official animal 

identification in the July 2006 final rule 

referred to the National Uniform 

Eartagging System as one of three 

systems of nationally unique animal 

identification that fulfilled the 

requirements of the definition. In the 

March 2009 proposed rule, we included 

a definition of National Uniform 

Eartagging System to help provide more 

information about this system, 

supporting the goal of standardizing 

animal identification and increasing 

animal traceability. 

Several commenters expressed 

concern that State-approved animal 

identification might not be recognized 

as official animal identification under 

the definition of National Uniform 

Eartagging System. These commenters 

stated that all State-approved official 

identification that is in use should be 

approved, and updates to animal 

identification systems should be 

required for new herds only. 

The proposed National Uniform 

Eartagging System definition did not 

affect the definition of official animal 

identification in the July 2006 final rule. 

The National Uniform Eartagging 

System is a numbering system, not a 

tagging system. With respect to 

identification devices, animals in herds 

enrolled in the CWD Herd Certification 

Program must have at least two forms of 

animal identification attached to the 

animal, approved by APHIS. As stated 

above, we will evaluate State animal 

identification systems for approval as 

official identification as part of the 

implementation process for the CWD 

Herd Certification Program. 

Definition of Premises Identification 

Number 

The July 2006 final rule defined 

premises identification number (PIN) in 

§§ 55.1 and 81.1 as a unique number 

assigned by a State or Federal animal 

health authority to a premises that is, in 

the judgment of the State or Federal 

animal health authority, a 

geographically distinct location from 

other livestock production units. The 

PIN is associated with an address or 

legal land description and may be used 

in conjunction with a producer’s own 

livestock production numbering system 

to provide a unique identification 

number for an animal. The definition 

stated that the PIN may consist of: 

• The State’s two-letter postal 

abbreviation followed by the premises’ 

assigned number; or 

• A seven-character alphanumeric 

code, with the right-most character 

being a check digit. The check digit 

number is based upon the ISO 7064 

Mod 36/37 check digit algorithm. 

The definition of official animal 

identification, in turn, allows the use of 

a premises-based number system in 

which an official PIN is combined with 

a producer’s livestock production 

numbering system to provide a unique 

identification number. 

In the March 2009 proposed rule, we 

proposed to amend this definition by, 

among other things, removing the 

option to use the State’s two-letter 

postal abbreviation followed by the 

premises’ assigned number as a PIN. 

Under the proposed rule, PINs issued 

after the effective date of a final rule 

following the March 2009 proposal 

would have had to consist of the sevencharacter alphanumeric code with the 

characteristics described above. 

Four commenters raised concerns 

about this change. One stated that 

producers who use eartags numbered 

with a premises-based number system 

containing PINs with State two-letter 

postal abbreviations and unique 

identifiers can now purchase eartags 

from the company of their choice 

without the involvement of an 

accredited veterinarian. Under the 

proposed rule, the commenter stated, 

such purchases would have to involve 

an accredited veterinarian, which would 

make the system unnecessarily 

cumbersome. 

Two commenters expressed concern 

that all currently used tags would need 

to be replaced. These commenters stated 

that the State identifier was preferable. 

One stated that the State authority 

issuing identifiers can more easily add 

to and update the system than the 

Federal Government can. The other 

stated that the State identifier can be 

tracked and updated better than a 

Federal identifier. A third commenter 

stated that, when State identifiers are 

used, purchasers can easily identify the 

State of origin of an animal, and stated 

that tracebacks are better handled by 

State veterinarians than by searching 

through a huge grouping of animals 

from all States. 

It is important to note that the 

proposal would not have required any 

currently issued tags to be replaced; it 

only would have required that all new 

PINs conform to the seven-character 

alphanumeric standard, thus requiring 

newly issued official identification to 

reflect the new PINs. In addition, we do 

not agree that using the seven-character 

alphanumeric standard poses any 

difficulties for verification of origin, 

traceback, or modifications to the 

system; the seven-character 

alphanumeric standard has been in use 

for many years without encountering 

these problems. Finally, the changes we 

proposed would not have required 

producers to purchase tags from an 

accredited veterinarian. 

However, we appreciate that some 

States may want the flexibility to 

continue using their PIN issuance 

system in the future. As long as PINs 

issued by States meet the other 

standards in the revised definition of 

PIN, we do not anticipate any problems 

with allowing States to do so. Therefore, 

in this final rule, we are including the 

option from the June 2006 final rule to 

use a PIN that consists of the State’s 

two-letter postal abbreviation followed 

by the premises’ assigned number. 

Credit for Herd Participation in States 

Without Approved State CWD Herd 

Certification Programs 

In the July 2006 final rule, paragraph 

(a) of § 55.22 sets out procedures and 

conditions for herd owner participation 

and enrollment in the Federal CWD 

Herd Certification Program. Paragraph 

(a)(1)(ii) sets out the procedures and 

conditions for enrollment of herds that 

are in a State that does not have an 

Approved State CWD Herd Certification 

Program. 

Under paragraph (a)(1)(ii)(B), if 

APHIS determines that the herd owner 

has maintained the herd in a manner 

that substantially meets the conditions 

specified in § 55.23(b) for herd owners, 

the enrollment date will be the first day 

that the herd participated in such a 

program. However, in such cases, the 

enrollment date may not be set at a date 

more than 2 years prior to the date that 

APHIS approved enrollment of the herd. 

This type of constructed enrollment 

date will be unavailable for herds that 


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apply to enroll 1 year after the 

implementation of the CWD program, 

and herds that apply to enroll after that 

date will have an enrollment date of the 

date APHIS approves the herd 

participation. 

In the March 2009 proposed rule, 

recognizing the delays in implementing 

the CWD program, we proposed to grant 

an additional year of credit for herds 

that had been maintained in a manner 

that substantially meets the conditions 

specified in § 55.23(b) for herd owners, 

for a total of 3 years’ credit. 

Four commenters stated that we 

should allow for 5 years’ credit to be 

granted to herds whose owners have 

maintained them in a manner that 

substantially meets the conditions 

specified in § 55.23(b). Doing so would 

allow those herds to enter the program 

in Certified status and thus be eligible 

to move interstate. One commenter 

stated that providing a maximum of 3 

years’ credit would essentially shut 

down the industry for 2 years and that 

States have written rules that provide 

adequate CWD surveillance status and 

disease control in their captive cervids, 

allowing for the interstate movement of 

animals with an extremely low risk of 

CWD. 

Three commenters stated that 

providing only 3 years’ credit for herd 

owner participation outside the context 

of an Approved State CWD Herd 

Certification Program discriminates 

against persons or farms that have a 

proactive approach to testing and 

recordkeeping but have a laggard or 

nonexistent CWD program in their 

States. These commenters stated that 

herds meeting the standards of the 

certification program for any time 

period should be enrolled in the Federal 

CWD Herd Certification Program on the 

date they began meeting such standards, 

as shown in accurate herd records. 

We appreciate the efforts of herd 

owners who maintain their herds in a 

manner that substantially meets the 

conditions specified in § 55.23(b) 

outside the context of a State CWD 

program, and we realize that limiting 

credit for such efforts to 3 years will 

temporarily prevent the interstate 

movement of animals from such herds 

until the herds can achieve Certified 

status. However, as discussed in the 

June 2006 final rule, only State 

programs have the extensive 

infrastructure, enforcement 

mechanisms, and record systems that 

verify participation and support 

reasonable confidence that herds in 

these programs can fully meet the 

program requirements over long periods 

of time. (In response to the first 

commenter, if a State has put in place 

adequate rules for CWD surveillance 

and disease control, that State’s CWD 

program would be eligible for 

recognition as an Approved State CWD 

Herd Certification Program under 

§ 55.23(a), thus allowing participating 

herds to receive 5 years’ credit.) 

While individual herd owners may 

also devise or join non-State programs 

that meet the necessary animal 

identification, monitoring, and other 

requirements, and their compliance may 

be documented through herd records 

and animal records in various State and 

market records collections, it would be 

very difficult to establish with 

confidence that such herds comply with 

requirements over lengthy periods. 

It should also be noted that herd 

owners who have been practicing CWD 

control and testing measures may not 

necessarily meet the criterion for 

granting credit that the herd has been 

maintained in a manner that 

substantially meets the conditions 

specified in § 55.23(b). We will 

individually review every application 

for enrollment credit under 

§ 55.22(a)(1)(ii)(B) to determine whether 

credit should be granted. 

We are making two changes to 

provisions involving enrollment dates 

in this final rule. In the July 2006 final 

rule, we provided in § 55.22(a)(1)(i) for 

herds to receive credit for having been 

enrolled in a State program that APHIS 

determines qualifies as an Approved 

State CWD Herd Certification Program. 

We indicated that such a ‘‘constructed 

enrollment date’’ would be unavailable 

for herds that applied to enroll 1 year 

after the effective date of the final rule. 

However, such a determination would 

be contingent on a State applying for 

approval of its CWD program. If a herd 

participated in a CWD program that was 

eventually determined to qualify as an 

Approved State CWD Herd Certification 

Program, but that State did not apply to 

have its program approved within 1 year 

of the effective date of this rule, the herd 

owner would receive no credit for 

participation due to the State’s inaction, 

despite the herd having been 

maintained consistent with the CWD 

Herd Certification Program. 

Accordingly, we are removing the 

provision in paragraph (a)(1)(i) that 

limited the availability of constructed 

enrollment dates. This will allow States 

to become approved at any time after 

the effective date of this final rule; herds 

enrolled and in good standing in their 

State program will maintain their State 

enrollment date in the Federal CWD 

Herd Certification Program provided 

they continue to meet our requirements. 

Similarly, we are removing the 

provision limiting constructed 

enrollment dates in paragraph 

(a)(1)(ii)(B), which indicated that herds 

maintained in a manner that 

substantially meets the conditions 

specified in § 55.23(b) would receive 

credit for up to 3 years of program 

participation only if they apply to enroll 

within 1 year after the effective date of 

this final rule. There is no reason to 

deny a herd owner credit based on the 

date of enrollment if the herd has been 

maintained in a manner that 

substantially meets the conditions 

specified in § 55.23(b). 

We are also switching the order of 

paragraph (a) of § 55.23, which 

discusses owner participation, and 

paragraph (b), which discusses State 

participation. As the provisions for 

owner participation discuss State 

participation, switching the order of 

these paragraphs will result in a more 

logical presentation. 

Movement of Animals Into CWDPositive, CWD-Exposed, and CWDSuspect Herds 

In the July 2006 final rule, paragraph 

(a) of § 55.23 lists aspects of a CWD 

program that the Administrator will 

evaluate when determining whether a 

State CWD program qualifies as an 

Approved State CWD Herd Certification 

Program. Paragraph (a)(4) stated that the 

Administrator will evaluate whether the 

State has placed all known CWDpositive, CWD-exposed, and CWDsuspect animals and herds under 

movement restrictions, with movement 

of animals from them only for 

destruction or under permit. (Movement 

under permit could include research 

animal movement, as provided in 

§ 81.3(d) of the July 2006 final rule, or 

movement from a breeding herd to a 

shooter facility.) 

In the March 2009 proposed rule, we 

proposed to amend this paragraph to 

require that States allow no movement 

of animals into such herds. We stated 

that such movement affects the CWD 

indemnity program, which makes 

indemnity available for eligible animals 

based on the inventory at the time the 

movement restrictions are imposed. An 

increase in the size of a herd under 

restriction due to CWD also causes a 

corresponding increase in the program 

resources devoted to the herd, and in 

the amount of work for Federal and 

State representatives working with the 

herd. For instance, if animals from 

several additional herds are added to a 

CWD-exposed or CWD-suspect herd that 

is later found positive for CWD, those 

additional herds must also be evaluated 

during traceback as possible sources of 

CWD. Also, increasing the herd size 

potentially increases the total number of 


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infected animals, and the risk of CWD 

spread (e.g., more animals means more 

opportunities for an animal to escape 

confinement). 

Several commenters stated that 

owners of some CWD-positive, CWDexposed, or CWD-suspect herds that are 

part of hunting operations have in the 

past added animals to their herds and 

need to continue adding animals in 

order to remain in business. These 

commenters stated that prohibiting 

movement of farmed or captive cervids 

to these farms would require these farms 

to breed all their animals, which in turn 

would require increasing the density of 

their cervid populations, to provide for 

both breeding cows and their male 

offspring. This would greatly increase 

the cost of doing business for these 

herds. 

A few owners of such herds stated 

that they would be put out of business 

if they could not add animals to their 

herds. One expressed concern that meat 

producers might be affected by such a 

restriction as well. 

Two commenters expressed concern 

that Certified herds might lose a 

valuable business opportunity if sales to 

herds with CWD-positive, CWDexposed, and CWD-suspect animals 

were prohibited. 

With respect to traceback, two 

commenters stated that epidemiologic 

investigations could be conducted from 

herds containing CWD-positive, CWDexposed, or CWD-suspect animals in the 

same way that they are conducted to 

and from other herds. 

With respect to transmission from the 

facility containing the CWD-positive, 

CWD-positive, CWD-exposed, or CWDsuspect animals, one commenter stated 

that State herd plans implemented at 

such facilities typically require double 

fences and double barriers designed to 

prevent contact between the farmed or 

captive cervids in the facility and wild 

cervids. Another commenter stated that 

the risk associated with escape of 

animals from a large herd containing 

CWD-positive, CWD-exposed, or CWDsuspect animals does not change when 

animals are added to that herd. 

With respect to indemnity, three 

commenters suggested that animals 

introduced into herds containing CWDpositive, CWD-exposed, or CWD-suspect 

animals should not be eligible for 

indemnity. Another commenter 

suggested that we allow herds to apply 

for indemnity only within a certain 

timeframe following the identification 

of a CWD-positive, CWD-exposed, or 

CWD-suspect animal from the herd. 

Based on these comments, we are not 

including this proposed change in this 

final rule. Our intent is to provide 

flexibility in the regulations to allow the 

operations described by commenters to 

remain economically viable. However, 

we note that, under this final rule, 

States will be allowed to restrict or 

prohibit the addition of animals to herds 

containing CWD-positive, CWDexposed, or CWD-suspect animals. We 

also note that, when paying indemnity 

for a whole herd, we only make 

indemnity available for the animals that 

were part of the herd at the time we 

confirm the CWD diagnosis that leads us 

to pay indemnity for a herd. 

We agree that epidemiologic 

investigations can be conducted from 

and to animals added to herds 

containing CWD-positive, CWDexposed, or CWD-suspect animals, in 

the same way epidemiologic 

investigations are conducted in other 

circumstances. However, the owners of 

Certified herds need to be aware that 

selling animals to herds containing 

CWD-positive, CWD-exposed, or CWDsuspect animals (or selling to a third 

party who may sell to such herds) 

increases their risk of being linked to 

CWD-positive animals and herds. 

Owners of Certified herds that sell 

animals to herds containing such 

animals need to make sure that they 

have accurate, complete, and up-to-date 

inventories and records. Without such 

inventories and records, it will be 

difficult to determine with reasonable 

confidence whether a Certified herd was 

a source of infection, which could result 

in movement restrictions being placed 

on that herd and the suspension or loss 

of the herd’s status in the CWD Herd 

Certification Program. We will work 

with herd owners and States to ensure 

that all herd owners are aware of the 

type of information we need to facilitate 

successful epidemiological 

investigations. 

With respect to additions to herds 

containing CWD-positive, CWDexposed, or CWD-suspect animals 

increasing the density of the herd and 

therefore increasing the risk of 

spreading CWD to neighboring or 

surrounding populations, we agree that 

there are mitigations available for this 

risk, such as the double fencing that the 

commenters cite. For herds that are 

enrolled in the CWD Herd Certification 

Program, we would require such 

mitigations to be contained in a herd 

plan. Again, under this final rule, States 

will have the option to require such 

mitigations when animals are moved 

into herds containing CWD-positive, 

CWD-exposed, or CWD-suspect animals. 

States can also ban such movement 

altogether. 

Herd Inventories 

In the July 2006 final rule, paragraph 

(b) of § 55.23 lists responsibilities of 

herd owners who enroll in the CWD 

Herd Certification Program. Paragraph 

(b)(4) describes requirements for herd 

recordkeeping and annual inventories. 

Among other things, paragraph (b)(4) 

requires the owner to allow an APHIS 

employee or State representative access 

to the premises and herd, upon request, 

to conduct an annual physical herd 

inventory with verification reconciling 

animals and identifications with the 

records maintained by the owner. The 

owner must present the entire herd for 

inspection under conditions where the 

APHIS employee or State representative 

can safely read all identification on the 

animals. The owner will be responsible 

for assembling, handling and restraining 

the animals and for all costs incurred to 

present the animals for inspection. 

In response to comments on the July 

2006 final rule, we proposed in March 

2009 to make changes to the annual 

inventory requirements to address their 

practicality. The changes we proposed 

were intended to clarify our intention to 

conduct an actual physical inventory of 

assembled animals when an APHIS 

employee or State representative finds it 

to be needed for program purposes. 

However, an actual physical inventory 

is not always necessary. 

We proposed to indicate that the 

APHIS employee or State representative 

may order either an inventory that 

consists of review of herd records with 

visual examination of an enclosed group 

of animals or a complete physical herd 

inventory with verification to reconcile 

all animals and identifications with the 

records maintained by the owner. In the 

latter case, we proposed to require the 

owner to present the entire herd for 

inspection under conditions where the 

APHIS employee, State representative, 

or accredited veterinarian can safely 

read all identification on the animals. 

The proposed rule indicated that 

inventory of a herd would be conducted 

no more frequently than once per year, 

unless an APHIS employee, State 

representative, or accredited 

veterinarian determines that more 

frequent inventories are needed based 

on indications that the herd may not be 

in compliance with CWD Herd 

Certification Program requirements. 

Ten commenters opposed removing 

the requirement for an annual physical 

herd inventory. Some cited specific 

issues. Two cited past experience in 

inspecting farmed or captive cervid 

herds as indicating that, without annual 

physical inspections, it is difficult to 

ensure that herds are in compliance. 


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One stated that in the absence of annual 

inspections, recordkeeping issues 

escalate rapidly. The other stated that 

we should require two inspections per 

year, one physical and one nonphysical 

inventory. 

Another commenter stated generally 

that the physical inventory requirement 

will help to ensure that adequate 

records are maintained, which will be 

vital in doing any necessary trace when 

an outbreak of CWD in a captive cervid 

herd occurs. 

Another commenter stated that, when 

two of the acceptable forms of unique 

identification that may be used include 

microchips and tattoos, there can be no 

substitute for handling the animals if 

their true identity is to be verified. 

The provisions we proposed give 

APHIS employees and State 

representatives the ability to require an 

annual complete physical herd 

inventory. The proposed provisions 

simply provide for an inventory of 

records as another option if no changes 

in the circumstances of a captive cervid 

herd indicate that a complete physical 

herd inventory is necessary. If an 

inventory indicates that a specific herd 

is not complying fully with the 

requirements of the program, the 

proposed regulations allow for more 

frequent physical inventories, at the 

discretion of APHIS employees and 

State representatives. 

We have determined that a review of 

herd records will be adequate for an 

annual inventory, assuming that the 

herd owner maintains adequate records 

and that there have been no major 

changes in the composition of the herd. 

In addition, three commenters stated 

that physical inventories impose a 

significant financial impact on 

producers, suggesting that, to the extent 

possible, complete physical herd 

inventories should be conducted no 

more often than necessary. 

Under this final rule, States have the 

option of requiring more frequent 

physical inventories for all herds in 

their States. 

One commenter stated that a complete 

physical herd inventory should be 

required only when there is sufficient 

reason to expect that poor records are 

being kept. 

We disagree. Although poor 

recordkeeping would be one reason we 

might require a complete physical herd 

inventory, there are other reasons as 

well. For example, if the facility 

containing the herd had experienced a 

fence breach, we might conduct a 

physical inventory. Large movements of 

animals in or out of the herd may result 

in enough uncertainty with respect to 

recordkeeping to warrant a physical 

inventory. Finally, physical inventories 

should be performed at intervals of no 

more than 3 years in order to ensure that 

recordkeeping is accurate. There may be 

other reasons to perform physical 

inventories as well. 

In the March 2009 proposed rule, we 

stated in the Background section that 

complete physical herd inventories 

would usually be several years apart; we 

did not propose to include any 

provisions regarding the frequency of 

physical inventories in the regulatory 

text. To communicate our expectations 

more clearly, we are adding in this final 

rule a requirement that a complete 

physical herd inventory be performed 

for all herds enrolled in the CWD Herd 

Certification Program no more than 3 

years after the last complete physical 

herd inventory for the herd. 

In the Background section of the 

proposed rule, we stated that a physical 

assembly would be required at the time 

a herd is enrolled in the Federal-State 

cooperative CWD program, in order to 

provide a reliable baseline record for the 

herd’s participation. Several 

commenters asked questions regarding 

whether inventories or inspections 

required by States could satisfy the 

requirement for an initial complete 

physical herd inventory. Twelve 

commenters stated that an initial 

physical inventory should only be 

required for those herds entering the 

CWD program that do not have a 

baseline record already on file with 

their State regulatory agency. Another 

commenter stated that it seems 

redundant and costly to require a 

physical inventory if a herd is already 

enrolled in a State CWD program. 

Another commenter stated that the 

requirement for an initial physical 

inventory should apply to new breeders 

only and not to existing breeders. One 

commenter asked whether herds that are 

enrolled in a compliant State CWD Herd 

Certification Program but have never 

had a physical inventory need to have 

a physical inventory done retroactively. 

In order to provide a reliable baseline 

record for the herd’s participation, a 

herd on which a complete physical herd 

inventory had never been performed 

would need to undergo a physical 

inventory before beginning participation 

in the Federal CWD Herd Certification 

Program. However, we would accept a 

complete physical herd inventory 

performed by an APHIS employee, State 

representative, or accredited 

veterinarian not more than 1 year before 

the enrollment date of the herd as 

fulfilling the requirement for an initial 

physical inventory. Such inventories 

might be performed as part of an official 

herd test for tuberculosis or brucellosis, 

or as part of a State CWD Herd 

Certification Program. 

We are making two changes related to 

this issue. To make our expectations 

clear, we are indicating in the 

regulations that a complete physical 

herd inventory must be performed at the 

time a herd enrolls in the CWD Herd 

Certification Program. We are also 

providing that APHIS may accept a 

complete physical herd inventory 

performed by an APHIS employee, State 

representative, or accredited 

veterinarian not more than 1 year before 

the herd’s date of enrollment in the 

CWD Herd Certification Program as 

fulfilling the requirement for an initial 

inventory. We would not accept such an 

inventory if the inventory did not 

appear to provide an accurate and 

complete accounting of the animals in 

the herd, or if the composition of the 

herd had changed substantially since 

the inventory was performed (for 

example, with large additions to or sales 

from the herd). 

One commenter asked whether 

inventories or inspections required by a 

State could satisfy the requirement for 

continuing inventories. In the 

commenter’s State, unrestrained 

inventories are performed yearly with 

record verification. 

We would accept a yearly State 

inventory of a herd in the Herd 

Certification Program as fulfilling this 

requirement, as it would be conducted 

by a State representative. The inventory 

would have to meet the other 

requirements of paragraph (b)(4). We 

will work with States as we implement 

the CWD Herd Certification Program to 

establish inventory procedures, where 

necessary. However, an inventory 

consisting of record verification would 

not satisfy the requirements for a 

physical inventory at the time of 

enrollment and once every 3 years 

thereafter. 

In the Background section of the 

proposed rule, we stated that the 

proposed changes should also make it 

possible in many cases to plan the 

timing of a physical assembly of a 

cervid herd for inventory so that it is 

coordinated with testing for brucellosis 

and tuberculosis. We noted that, to 

maintain a herd’s Certified status with 

regard to brucellosis, or its Accredited 

status with regard to tuberculosis, the 

herd must be retested for the relevant 

disease every 21 to 27 months under 

current brucellosis and tuberculosis 

regulations. 

Several commenters emphasized that, 

to have a successful program with 

producer buy-in, complete physical 

herd inventories should coincide with 

other industry animal health programs. 


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3Available at http://www.aphis.usda.gov/ 

animal_health/animal_diseases/brucellosis/. 

These commenters stated that the 

recertification frequency for cervids in 

the tuberculosis and brucellosis 

programs is 33 to 39 months. 

The commenters are correct that the 

frequency at which captive cervid herds 

that are accredited for tuberculosis are 

tested for that disease is 33 to 39 

months, under § 77.35(d). However, in 

the Uniform Methods and Rules for 

brucellosis in cervids,3 all test-eligible 

animals in Certified Brucellosis-Free 

herds are required to have a negative 

test at intervals between 21 and 27 

months. Both of these intervals may 

change in the future. Our intent was to 

indicate that there are already occasions 

at which the animals in a herd must be 

assembled, handled, and restrained, 

which are occasions at which a 

complete physical herd inventory could 

be conducted with minimal additional 

cost and disruption to the herd. 

Commenters raised other concerns 

with respect to timing. Several 

commenters stated that whole herd 

assembly for handling should be 

consistent and within the established 

husbandry timeframe practiced by the 

industry for the species in question. One 

commenter stated that physical 

inventories inspections should be 

limited to those periods where animal 

health will not be endangered, e.g., 

cows in late stage of pregnancy and 

bulls in velvet or hard antler. Two 

commenters stated that complete 

physical herd inventories could be done 

during weaning and/or breeding. One 

commenter noted generally that there 

are many times during a year that it 

would be dangerous to handle deer. 

We agree with these commenters that 

these issues should be taken into 

account when scheduling a complete 

physical herd inventory. We already 

take these issues into account when 

scheduling whole-herd tests for 

brucellosis and tuberculosis in farmed 

or captive cervids. In all cases, when 

scheduling a complete physical herd 

inventory, we will work with the owner 

of the herd to find a time that takes all 

relevant factors into account. We are 

providing a 3-year span in which a 

physical inventory may be conducted in 

order to allow for such flexibility of 

scheduling. 

Several commenters stated that, if 

herd records indicate that a specific 

number of animals are in a pen, and the 

inspector can verify that amount, there 

should be no need for a visual 

inspection of each tag. 

We disagree. Records could indicate 

that the number of animals in a pen was 

correct, but without verifying that the 

identification on each animal matches 

that reflected in the records, we cannot 

be certain that the animals in the pen 

are the same as the animals in the 

records. Another commenter noted that 

most forms of identification will not be 

readable from any distance unless the 

animal is restrained, which makes a 

hands-on physical inventory necessary. 

The regulations in this final rule do 

provide for an inventory based on 

records, but we will need to conduct 

complete physical herd inventories 

occasionally, for the reasons discussed 

earlier. 

Several commenters stated that whole 

herd inventories should be conducted 

during routine herd health procedures. 

If APHIS or another agency orders a 

physical inventory, these commenters 

stated, then APHIS or the ordering 

agency should be responsible for the 

costs, risks, and animal losses 

associated with handling the animals in 

the herd. 

As discussed earlier, we will make 

every effort to conduct complete 

physical herd inventories at times 

coincident with whole-herd testing or 

other times when the herd is being 

restrained for another purpose. 

However, we will not guarantee that all 

complete physical herd inventories will 

be conducted at such times; when there 

are reasons to suspect that 

recordkeeping is deficient, for example, 

we may need to conduct a complete 

physical herd inventory in order to 

provide assurance that the herd is in 

compliance with the CWD Herd 

Certification Program. In that case, 

owners will be responsible for all costs 

incurred to present the animals for 

inspection, a provision of the July 2006 

final rule that we did not propose to 

change in March 2009. The CWD Herd 

Certification Program is a voluntary 

program for herd owners who wish to 

avail themselves of the opportunity 

presented by the program to 

demonstrate that the animals in their 

herds are low-risk for CWD. It is not 

appropriate to pay costs of participation 

in this voluntary program. 

We note that keeping accurate, 

complete, and up-to-date records will 

make APHIS employees more confident 

that an inventory conducted by 

reviewing records, as opposed to a 

physical inventory, may be sufficient to 

fulfill the yearly inventory requirement. 

Several commenters stated that the 

frequency of complete physical herd 

inventories must be consistent with 

animal health programs for other 

species, and that currently there is no 

annual herd inventory required for 

cattle herds in the tuberculosis or 

brucellosis programs. 

For the other programs to which the 

commenters refer, complete physical 

herd inventories are conducted at the 

time the whole-herd test is conducted. 

As discussed in this document, we plan 

to schedule complete physical herd 

inventories so that they coincide with 

other occasions when the herd is 

assembled, such as whole-herd tests for 

tuberculosis and brucellosis. However, 

unlike brucellosis and tuberculosis, 

there is no approved ante-mortem test 

for CWD, meaning that we cannot use 

testing to determine the health status of 

individual animals when they are 

moved interstate. Instead, we establish 

that animals in a herd are at low risk of 

being infected with CWD through 

surveillance over time. As the animals’ 

low-risk status is thus tied to their 

membership in a herd that has 

undergone 5 years of surveillance 

without finding CWD, an annual 

inventory of the herd’s records is 

necessary to validate those records. We 

note that the records inventory should 

be much less labor- and time-intensive 

than the physical herd inventory. 

We also proposed to amend paragraph 

(b)(4) to include accredited 

veterinarians as people who can 

conduct a herd inventory, along with 

APHIS employees and State 

representatives. The July 2006 final rule 

allows accredited veterinarians to 

perform many other Herd Certification 

Program functions; allowing them to 

conduct inventories would be consistent 

with the rest of the program. 

One commenter stated that States 

should be able to specify when and 

under what conditions accredited 

veterinarians are approved to conduct 

inventories. The commenter’s State 

requires that a regulatory veterinarian 

conduct the first inventory; accredited 

veterinarians can conduct subsequent 

inventories. 

Under this final rule, States are free to 

put in place requirements regarding 

when an accredited veterinarian is 

allowed to conduct a herd inventory, 

such as the one the commenter 

describes. 

Several commenters expressed 

concern that the proposed rule did not 

prevent an accredited veterinarian from 

inventorying his or her own herd. Some 

of these commenters also stated that 

accredited veterinarians should not be 

able to issue certificates for the 

movement of animals from their own 

herds, as allowed by the July 2006 final 

rule under § 81.4. 

Another commenter stated that 

accredited veterinarians should not be 

allowed to inspect their own herds to 


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determine whether they are in 

compliance. 

We disagree that such provisions are 

necessary for the regulations governing 

the CWD Herd Certification Program. 

Accredited veterinarians routinely 

perform accredited duties on their own 

animals in other Veterinary Services 

programs. Under our regulations in 9 

CFR part 161, to maintain their 

accreditation, accredited veterinarians 

must comply with the standards for 

accredited veterinarian duties in 

§ 161.4. If an accredited veterinarian 

conducted an irregular inventory of his 

or her own cervid herd, we would 

suspend or revoke the accreditation of 

that veterinarian. Although our 

experience indicates that the 

commenters’ concerns are misplaced, 

nonetheless, under this final rule, States 

are free to impose restrictions on what 

duties an accredited veterinarian 

performs on his or her own animals in 

the State’s CWD program should they 

choose to. 

One commenter requested that we 

add a definition of accredited 

veterinarian. 

We concur that providing such a 

definition would improve the clarity of 

the regulations, particularly when other, 

similar parts in subchapters B and C 

include such a definition. Accordingly, 

we are adding a definition of accredited 

veterinarian to §§ 55.1 and 81.1 in this 

final rule. The definition indicates that 

an accredited veterinarian is approved 

by the Administrator in accordance with 

9 CFR part 161 to perform functions 

specified in subchapters B, C, and D of 

9 CFR chapter I. 

One commenter stated that the annual 

inspection of captive cervid facilities 

should include participation from 

wildlife professionals as well as 

accredited veterinarians. 

Wildlife professionals could conduct 

inventories if they were State 

representatives with authority over 

farmed or captive cervids and involved 

in the oversight of the CWD Herd 

Certification Program. We note that the 

commenter is a representative of a State 

in which the wildlife authority has 

jurisdiction over farmed and captive 

cervids, so it is likely that, in this 

commenter’s State, wildlife 

professionals would conduct or assist in 

inventories. 

One commenter recommended that 

we propose common inventory 

datasheets, allowing for States to design 

their own as localized issues may 

require some reasonable modifications. 

The regulations in paragraph (b)(4) of 

§ 55.23 already state the information 

that is required for an inventory: The 

age and sex of each animal, the date of 

acquisition and source of each animal 

that was not born into the herd, the date 

of disposal and destination of any 

animal removed from the herd, and all 

individual identification numbers (from 

tags, tattoos, electronic implants, etc.) 

associated with each animal. Under 

paragraph (a)(10) of § 55.23, States are 

required to maintain this information in 

a State database, pending the creation of 

the CWD National Database 

administered by APHIS. 

In this final rule, we are amending the 

list of information required for each 

animal to include the species of the 

animal. This information will be useful 

in conducting inventories and 

confirming the accuracy of herd records. 

One commenter noted that, in hunting 

preserves, there is no way possible to 

assemble the animals for inventory 

because they are lost in many acres of 

woodland, and there is no way to track 

births inside of a hunting preserve. The 

commenter stated that these premises 

should be exempt from the inventory 

requirements, as the animals never leave 

the preserve alive anyway. 

Participation in the voluntary CWD 

Herd Certification Program will require 

maintenance of accurate, complete, and 

up-to-date herd records, and verifying 

those records when necessary. Such 

records are essential to allow a herd 

owner to demonstrate that animals in 

the herd are low risk for CWD. As 

discussed earlier, the CWD Herd 

Certification Program establishes that 

animals are low risk through 

surveillance over time, making it crucial 

that we know which animals are 

included in the surveillance. Herd 

owners should consider whether they 

can comply with the requirements of the 

CWD Herd Certification Program before 

applying to enroll in the program. 

One commenter stated that the 

regulations should require an adequate 

review of facility maintenance, animal 

health, and regulatory compliance 

during the nonphysical inventory. 

We do not believe it is necessary to 

indicate in the regulations that such a 

review will take place. APHIS 

employees and State representatives 

will evaluate these facility conditions 

during inventories, as well as at other 

times. If we discover that the 

requirements of the regulations are not 

being complied with, we will take 

appropriate action. 

Confirmatory DNA Testing of Official 

Test Samples 

In the July 2006 final rule, § 55.24 sets 

out provisions for determining the 

status of a herd of farmed or captive 

cervids enrolled in the CWD Herd 

Certification Program. Paragraph (c)(1) 

provides for an owner to appeal 

cancellation of enrollment or 

suspension or loss of herd status. We 

proposed to amend paragraph (c)(1) to 

provide a process by which herd owners 

can appeal the designation of an animal 

as CWD-positive, based on DNA test 

results. 

Several commenters stated that any 

process for confirmatory DNA testing 

should include not just the current 

owner of an animal but also the original 

owner of the animal, if any. Some 

commenters stated that, in the event of 

a traceback, original owners should be 

allowed to submit their own samples. 

Two commenters stated that many herd 

owners conduct DNA testing on their 

animals at birth, allowing for the use of 

these records. Commenters also stated 

generally that many herd owners 

already have their animals’ DNA 

profiled or recorded in a registry, 

meaning the confirmatory DNA testing 

process could make use of this 

information. Two commenters stated 

that owners should be allowed to keep 

DNA samples of animals they have sold 

for use in confirmatory DNA testing. 

Other commenters stated that tissue 

for DNA testing should be required to 

accompany all samples sent for CWD 

testing, to protect previous owners who 

cannot submit tissues when animals are 

tested but who will be implicated in the 

event of a positive CWD test result. 

We understand the concerns of the 

commenters that previous owners of an 

animal may be implicated in a traceback 

resulting from a CWD-positive animal, 

since such implication may lead to the 

suspension or loss of a herd’s CWD 

status. However, the goal of the 

confirmatory DNA testing provisions is 

only to verify that the sample tested is 

a match for a particular animal. 

The recordkeeping requirements in 

the regulations, if followed, will allow 

us to conduct tracebacks in the event of 

a positive CWD test result. As discussed 

earlier, we require an annual inventory 

in part to ensure that we can conduct an 

appropriate traceback. 

Our regulations do not prevent 

owners of animals from retaining DNA 

samples of animals they sell. Sellers of 

animals are also free to contract with 

their buyers to provide that the buyers 

will submit a DNA sample for 

confirmatory testing if the animal is 

tested for CWD. 

As discussed in the proposed rule, we 

have added the option of confirmatory 

DNA testing in response to commenters. 

However, we should note that we 

currently maintain rigorous chain-ofcustody procedures for samples that are 

submitted for CWD testing, and we will 

continue to maintain these procedures 


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both for samples that are not 

accompanied by tissue for confirmatory 

DNA testing and those that are. We are 

confident that our current processes 

ensure that test results are correctly 

assigned to individual animals, as they 

do in other APHIS animal health 

programs. 

We stated that our guidance on 

confirmatory DNA testing would allow 

an owner to reserve the option for 

confirmatory DNA testing by informing 

the Federal or State representative or 

accredited veterinarian who collects the 

tissues. To allow for later confirmatory 

DNA testing, we proposed that the 

person collecting the tissues would also 

collect from the animal some somatic 

tissue that contains an official 

identification device, along with the 

tissue samples routinely collected for 

CWD testing (brain stem, lymph nodes, 

etc.). Submitting tissues attached to an 

official identification device establishes 

a reliable chain of custody that allows 

later DNA tests to be compared to a 

tissue sample that verifiably comes from 

the owner’s animal in question. 

One commenter stated that the 

requirement to maintain an official 

identification device with every DNA 

sample is an absurd requirement 

designed to impede confirmatory 

activities, particularly if the samples are 

held by an independent third party. The 

commenter stated that APHIS itself does 

not require samples to be accompanied 

by official identification. Another 

commenter stated that, if an accredited 

veterinarian is submitting all samples, 

there should be no need to have tissue 

attached to the official identification. 

The official identification device is 

necessary in order to ensure that there 

is an incontestable association between 

the tissue whose DNA is tested and the 

animal being tested. Without official 

identification attached to the tissue 

being tested, both APHIS and the owner 

would rely on APHIS’ chain-of-custody 

processes to ensure that the identity of 

the animal is associated properly with 

the DNA test results of the tissue 

sample. 

As discussed earlier, we are confident 

that our chain-of-custody processes are 

effective. However, as a request for 

confirmatory DNA testing indicates that 

the owner wants additional assurance 

regarding the effectiveness of those 

processes (including the submission of 

samples by an accredited veterinarian), 

it would not make sense to rely on that 

chain of custody for confirmatory DNA 

testing as well. 

We discuss other comments related to 

third parties conducting CWD tests and 

holding samples later under this 

heading. 

Several commenters expressed 

concern regarding the requirement to 

include somatic tissue with an official 

identification device. These commenters 

stated that it would be difficult to fulfill 

such a requirement, especially for male 

animals, where taxidermy work requires 

the head, shoulder, and neck areas to be 

left intact for the mounting process. In 

the trophy market, a missing piece of ear 

would devalue the animal. These 

commenters also stated that the 

requirement for tissue to be attached to 

the official identification is not practical 

when a microchip is the official 

identification device. 

As explained earlier, we need an 

official identification device to be 

attached to the somatic tissue in order 

to establish an incontestable link 

between the two. The confirmatory DNA 

testing process is optional for owners. If 

owners believe that supplying the tissue 

necessary to conduct confirmatory DNA 

testing will result in an economically 

unacceptable devaluation of their 

animals, they should not choose to use 

this optional process. 

Microchips that are used as official 

identification devices are designed so 

that some tissue adheres to the 

microchip. This is to prevent a person 

from moving an official identification 

microchip from one animal to another. 

The somatic tissue that adheres to such 

microchips when removed from the 

animal will be usable in our 

confirmatory DNA testing process. 

As an alternative to providing somatic 

tissue with official identification 

attached, several commenters suggested 

that accredited veterinarians collect 

DNA samples for each animal during 

the complete physical herd inventory 

and store them until the animals are 

tested for CWD. Some of these 

commenters stated that such samples 

should be held by a third party. 

Our program resources are not 

sufficient to allow us to build or lease 

space in which to store sample tissue for 

DNA testing for each farmed or captive 

cervid that is identified in a complete 

physical herd inventory, or to contract 

for such storage. In any case, using DNA 

samples stored by APHIS or a third 

party for confirmatory testing would 

create chain-of-custody issues, rather 

than resolve them. 

Several commenters stated that a 

neutral third party should maintain the 

tissue to be used for confirmatory DNA 

testing. 

Most CWD samples are tested by 

third-party laboratories, either State or 

university laboratories. These thirdparty laboratories are approved to 

conduct CWD testing under § 55.8(d). 

We audit third-party laboratories to 

make sure they comply with the 

standards set out in § 55.8(d). 

If an owner decides that DNA testing 

is necessary to confirm the identity of 

the animal that tested positive for CWD, 

tissue attached to an official 

identification device would be used for 

the testing, to ensure that the brain or 

lymph node sample that tests positive 

for CWD has the same DNA as the tissue 

attached to the official identification 

device. The sample used for 

confirmatory DNA testing would 

accompany the sample of brain and 

lymph node tested for CWD to ensure 

that chain of custody is not broken. 

The National Veterinary Services 

Laboratories (NVSL) is the only 

laboratory authorized to confirm a 

CWD-positive test result from a thirdparty laboratory, so any tissue to be 

used for confirmatory DNA testing for 

an animal that tested positive for CWD 

would have to accompany the suspect 

sample to NVSL from the third-party 

laboratory, in order to maintain chain of 

custody. We are planning to conduct the 

optional confirmatory DNA testing at 

NVSL or at a third-party laboratory 

authorized to perform such testing. The 

sample for CWD testing will be 

accompanied by the tissue for 

confirmatory DNA testing at all times. 

Therefore, the involvement of a neutral 

third party is not necessary and would 

in fact increase complications in 

maintaining chain of custody. 

One commenter recommended that 

the cost of DNA testing be borne 

initially by APHIS, to show that positive 

tests truly came from the animals for 

which the positive test results were 

reported. If the association of the animal 

with the positive test results is 

confirmed, the commenter 

recommended, the owner’s indemnity 

would be reduced by the cost of the 

testing. If the association is not 

confirmed, the animal would no longer 

be a CWD suspect and APHIS should be 

held responsible for all costs associated 

with such confirmatory testing and herd 

disruption. This commenter also stated 

that confirmatory DNA testing should be 

performed on all CWD-positive cervids, 

so as to remove the onus of possible 

Government error. 

The commenter’s recommendations 

are impractical in several respects. Not 

all herds in which animals are 

diagnosed as CWD-positive are 

subsequently depopulated, as discussed 

earlier in this document under the 

heading ‘‘Movement of Animals into 

CWD-Positive, CWD-Exposed, and 

CWD-Suspect Herds.’’ A CWD diagnosis 

in those herds would not result in the 

payment of indemnity, meaning that we 

could not recover the costs of 


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confirmatory DNA testing. Performing 

confirmatory DNA testing on every 

CWD-positive sample we receive could 

thus require substantial resources. In 

addition, as discussed earlier, providing 

the necessary somatic tissue attached to 

official identification could be difficult 

for some herd owners, meaning they 

might not want to participate in 

confirmatory DNA testing. 

Confirmatory DNA testing is an 

optional service we proposed to 

provide, based on the requests of 

commenters, only when herd owners 

request the service. We are confident 

that our chain-of-custody processes are 

effective. We do not believe it is an 

appropriate use of APHIS’ limited 

resources to pay for confirmatory DNA 

testing. As noted earlier, the CWD Herd 

Certification Program is a voluntary 

program for herd owners who wish to 

avail themselves of the opportunity 

presented by the program to 

demonstrate that the animals in their 

herds are low-risk for CWD. It is not 

appropriate to pay any of the costs of 

participation in this voluntary program, 

such as costs associated with herd 

disruption. In any case, disruption in 

the circumstances the commenter cites 

would be temporary, as the herd’s status 

would be restored after the error was 

found. 

One commenter stated that allowing 

for confirmatory DNA testing would be 

contrary to current accepted procedures 

that allow for the immediate 

depopulation of herds in the event of a 

serious livestock disease outbreak. The 

commenter stated that delays inherent 

in DNA retesting potentially allow for 

continued disease exposure both to 

cohort animals, but also the continued 

contamination of the environment; in 

addition, the longer depopulation is 

delayed, the greater the risk that animals 

may escape or be illegally moved. 

The available scientific evidence 

indicates that CWD is not an acute 

infectious disease; typically, by the time 

it is diagnosed in an animal, the disease 

has been present on a premises for a 

year or more. In addition, the 

confirmatory DNA testing is not 

expected to take more than a few days. 

Accordingly, we have determined that 

the risks the commenter identifies with 

respect to disease spread are unlikely. 

As the commenter notes, any movement 

from a herd in which an animal has 

been identified as CWD-positive would 

be illegal; we work with our State 

counterparts to ensure effective 

enforcement of this requirement. We are 

making no changes in response to this 

comment. 

However, we are making two changes 

to the proposed protocol in this final 

rule. As proposed, the protocol 

indicated that a Federal or State 

veterinarian or accredited veterinarian 

would collect the tissue for testing. 

However, we do not plan to require that 

a veterinarian collect samples for CWD 

testing, so it would be inappropriate to 

require that a veterinarian also collect 

tissue for DNA testing. Therefore, we are 

removing the references in the proposed 

rule to the persons who can collect the 

samples. In addition, we are clarifying 

that the tissue tested for comparison to 

a CWD sample must have been collected 

from the same animal. 

Monitoring Period Required To Move 

Deer, Elk, and Moose Interstate 

In the July 2006 final rule, part 81 

contains restrictions on the interstate 

movement of farmed or captive deer, 

elk, and moose that are designed to 

prevent the spread of CWD. Paragraph 

(a) of § 81.3 contains general restrictions 

on the interstate movement of deer, elk, 

and moose in the CWD Herd 

Certification Program. Under the July 

2006 final rule, during its first year of 

implementation, cervids would be 

allowed to move interstate if they have 

been in an approved CWD Herd 

Certification program, and thus subject 

to monitoring for CWD and other 

requirements, for at least 1 year. The 

CWD final rule increased this length-oftime requirement in succeeding years of 

implementation, so the time animals 

would have had to be in a herd 

certification program in order to move 

interstate gradually increased to 2 years, 

then 3, then 4, then 5 years. 

In response to the petitions and many 

comments we received on the petitions, 

and based on a review of the available 

scientific evidence regarding the range 

of incubation periods for CWD, we 

proposed to remove the gradual 

escalation of the length-of-time 

requirement for farmed or captive deer, 

elk, or moose moved interstate. We 

instead proposed to require farmed or 

captive deer, elk, or moose moved 

interstate to be from herds that have had 

at least 5 years’ monitoring in the CWD 

Herd Certification Program and have 

achieved Certified status. We stated that 

this requirement is based on our 

interpretation of currently available 

research, and we may propose to modify 

it in the future if additional research 

provides a basis for doing so. 

One commenter stated that the 5-year 

monitoring period seems reasonable at 

this time, but there should be flexibility 

to immediately extend that period 

should science dictate such an 

extension is warranted. Another 

commenter stated that any regulation, 

Federal or State, should allow for rapid 

modification of such a requirement as 

new scientific information becomes 

available. 

We agree. If the scientific evidence 

regarding the range of incubation 

periods for CWD advances and indicates 

that the 5-year monitoring requirement 

is either longer than necessary or not 

long enough, we will promptly propose 

appropriate changes to the regulations. 

One commenter supported the 5-year 

monitoring requirement, but stated that 

there needs to be a way a new farmer 

can immediately achieve Certified status 

by purchasing a new herd from a farm 

or farms that are certified 5 years or 

more. 

The regulations in § 55.24, which 

govern herd status, provide for the 

creation of a herd in the manner the 

commenter describes. Specifically, 

paragraph (a) of § 55.24 states that when 

a herd is first enrolled in the CWD Herd 

Certification Program, if the herd is 

composed solely of animals obtained 

from herds already enrolled in the 

program, the newly enrolled herd will 

have the same status as the lowest status 

of any herd that provided animals for 

the new herd. Therefore, if a new farmer 

purchased only farmed or captive 

cervids from herds that have achieved 

Certified status, and if the new herd met 

the other requirements in part 55 for 

herd participation, that herd would 

enter the program at Certified status. 

One commenter stated that, in 9 years 

of raising elk, no CWD cases have been 

found in his herds. The commenter 

currently has a small herd that was 

established in 2006. The commenter 

stated that he would like to begin selling 

breeding stock and hunting bulls to 

other ranches, but the new 5-year 

requirement would prevent his ranch 

and all other ranches from doing this. 

As discussed in response to the 

previous comment, if the commenter’s 

herd is composed solely of animals 

obtained from herds already enrolled in 

the CWD Herd Certification Program, he 

may be able to get credit for those 

animals’ statuses that would allow him 

to reach Certified status and thus move 

his animals interstate. We believe that 

many cervid producers who rely on 

moving animals interstate for the 

success of their businesses have already 

participated in a State CWD herd 

certification and monitoring program for 

5 years or longer, and thus would not 

be adversely affected by the adoption of 

a 5-year standard. In any case, in our 

review of the scientific evidence 

regarding the range of incubation 

periods for CWD, we determined that 

requiring 5 years of monitoring in order 

for animals in the CWD Herd 

Certification Program to move interstate 


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was appropriate. The commenter did 

not provide any evidence to the 

contrary. 

In a related change, we proposed to 

add two general requirements in a new 

§ 81.3(a) for certification of all deer, elk, 

and moose moved interstate, not just 

those in the CWD Herd Certification 

Program. One requirement was that no 

deer, elk, or moose originating from a 

premises that was within 25 miles (40 

km) of a federally or State-identified 

case of CWD in wild deer, elk, or moose, 

or within 25 miles (40 km) of an area 

where CWD has become established in 

wild deer, elk, or moose, as defined by 

APHIS and the State, could be moved 

into a State that did not accept such 

animals. We are not including this 

requirement in the final rule for reasons 

discussed in the section ‘‘Changes in the 

March 2009 Proposed Rule That Are 

Now Unnecessary.’’ 

The other requirement, which we 

proposed to add as a new paragraph 

(a)(1), was that no farmed or captive 

deer, elk, or moose may be moved 

interstate from farmed or captive herds 

infected with CWD, or 

epidemiologically linked to herds 

infected with CWD within the past 5 

years. 

Several commenters asked us to 

clarify the meaning of the term 

‘‘epidemiologically linked’’ in proposed 

paragraph (a)(1). Two commenters 

expressed specific concerns regarding 

the scenario of a Certified herd selling 

animals to another herd, following 

which CWD is discovered in the 

receiving herd; the commenters wanted 

to know whether the Certified source 

herd would qualify as 

‘‘epidemiologically linked’’ in this case. 

Two other commenters asked whether, 

if an animal is linked through 

epidemiological investigation to a CWDpositive herd, but the animal in 

question is tested for CWD and found 

not to be CWD-positive, the herd 

containing that animal would be 

epidemiologically linked to the herd 

infected with CWD. 

We understand the potential 

confusion associated with our use of the 

term ‘‘epidemiologically linked’’ in 

proposed § 81.3(a)(1). For herds in the 

CWD Herd Certification Program, we 

have a full description of how 

epidemiological linkages are 

investigated and how herd status may 

be suspended or lost in § 55.24(b), but 

our proposed requirement in paragraph 

(a)(1) would have applied to all deer, 

elk, and moose moved interstate. 

In light of our not including the 

proposed proximity provisions in the 

final rule, we examined proposed 

paragraph (a)(1) and found it to be 

unnecessary. The regulations provide 

for the interstate movement of farmed or 

captive deer, elk, and moose in five 

circumstances. In each of these 

circumstances, it is unnecessary to 

require separately that the animal being 

moved interstate not be from a herd 

where CWD has been diagnosed in the 

past 5 years or that is epidemiologically 

linked to herds where CWD has been 

diagnosed in the past 5 years. 

• Animals in the CWD Herd 

Certification Program. We proposed to 

require that such animals come from 

herds that have achieved Certified 

status. In order to achieve Certified 

status, the herd must not contain CWDpositive animals or be epidemiologically 

linked to a CWD-positive herd, as 

described in § 55.24. Therefore, having 

a separate requirement regarding 

epidemiological linkage is superfluous 

for these animals. 

• Animals captured from wild 

populations for interstate movement or 

release. The July 2006 final rule requires 

that such an animal must have two 

forms of animal identification, one of 

which is official animal identification, 

and a certificate accompanying the 

animal must document the source 

population to be low risk for CWD, 

based on a CWD surveillance program 

that is approved by the State 

Government of the receiving State and 

by APHIS. As such animals do not 

originate from farmed or captive herds, 

it would be impossible to certify that 

they are not from a CWD-positive herd 

or that they are not epidemiologically 

linked to such a herd. 

We are making changes related to the 

movement of animals captured for 

interstate movement or release in this 

final rule. In the July 2006 final rule, the 

requirements for issuance of certificates 

for all captive cervids in § 81.4(a) 

included a requirement that the 

certificate include a statement that the 

animals are from a herd that has 

achieved Certified status in the CWD 

Herd Certification Program, and must 

provide the herd’s program status; no 

exception was made for animals 

captured from wild populations for 

interstate movement and release. 

However, it is impossible to provide 

that information for such animals, 

which is why the regulations in 

§ 81.3(b) include the alternative 

requirement to document the animals’ 

source population as low risk for CWD. 

We are amending § 81.4 to remove the 

requirement for documentation of the 

captured wild animals’ Certified status 

in the CWD program. We are also 

making minor editorial changes to 

§ 81.3(b) to indicate that the certificate 

must state that the source population 

has been documented to be low risk for 

CWD, rather than indicating that the 

certificate itself must provide this 

documentation. 

• Animals moved to slaughter. The 

July 2006 final rule requires that these 

animals have two forms of identification 

and be moved interstate with a 

certificate. There is no need for further 

restriction of animals moved to 

slaughter based on epidemiological 

linkage, as animals moved to slaughter 

are a low-risk pathway for the spread of 

disease. 

• Research animals. Such animals are 

moved under special permits for 

research purposes. It may well be 

valuable to move animals interstate for 

research that are from or are 

epidemiologically linked to CWDpositive herds. 

• Interstate movements approved by 

the Administrator. It would be 

inappropriate to limit the 

Administrator’s authority to approve 

interstate movement of animals to 

animals that are not from CWD-positive 

herds or epidemiologically linked to 

CWD-positive herds. 

Therefore, we are not including 

proposed paragraph (a)(1) in this final 

rule. Section 81.3 in this final rule 

resembles the section as it appeared in 

the July 2006 final rule, except that 

paragraph (a), the paragraph describing 

interstate movement restrictions for 

farmed or captive deer, elk, and moose 

in the CWD Herd Certification Program, 

now indicates that such animals must 

come from a herd that has achieved 

Certified status in accordance with 

§ 55.24. We are also not including a 

provision we proposed to add in § 81.4 

that would have required a certificate 

for the interstate movement of deer, elk, 

or moose to include a statement that the 

animal being moved interstate are not 

from farmed or captive herds infected 

with CWD, or epidemiologically linked 

to herds infected with CWD within the 

past 5 years. 

Certification That Deer, Elk, and Moose 

Moved Interstate Do Not Show Clinical 

Signs of CWD 

In the July 2006 final rule, paragraph 

(a)(2) of § 81.3 requires a farmed or 

captive deer, elk, or moose that is 

moved interstate and that is from a herd 

in the CWD Herd Certification Program 

to be accompanied by a certificate 

issued in accordance with § 81.4 that 

identifies its herd of origin and its 

herd’s CWD Herd Certification Program 

status, and states that it is not a CWDpositive, CWD-exposed, or CWD-suspect 

animal. 

We proposed to change these 

requirements. Because we proposed to 


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require that all animals from the CWD 

Herd Certification Program moved 

interstate to be monitored for 5 years, 

we proposed to change the requirement 

to indicate that the herd status must be 

Certified. We also proposed to require 

that the certificate indicate that the 

animal does not show clinical signs 

associated with CWD, rather than that 

the animal is not a CWD-positive, CWDexposed, or CWD-suspect animal. 

Requiring the certificate to state that the 

animal does not show clinical signs 

associated with CWD is consistent with 

information that can be obtained from 

an examination and with other 

interstate animal movement regulations. 

One commenter asked whether 

fulfilling this requirement would 

necessitate a veterinary inspection prior 

to movement. If so, the commenter 

stated, then the requirement is 

extremely burdensome. The 

commenter’s State requires a brand 

inspector to inspect all animals prior to 

movement, meaning that having a 

veterinarian conduct an additional 

inspection is unnecessary if the herd 

has been certified. The commenter 

stated that the brand inspector would 

easily recognize CWD symptoms. 

Requiring a veterinarian to inspect 

animals moved interstate is standard in 

all APHIS disease programs, and a 

veterinary inspection for farmed or 

captive deer, elk, and moose moved 

interstate is essential to ensure that the 

animal being moved interstate is 

apparently healthy and meets the 

requirements of the regulations. Both 

State veterinarians and accredited 

veterinarians who perform this 

certification must comply with certain 

standards of practice and are 

accountable to APHIS. Allowing some 

other agency to inspect and certify 

animals for interstate movement would 

not provide the assurance that the 

requirement for a veterinary inspection 

does. (We note that the July 2006 final 

rule also required the certificate 

accompanying a farmed or captive deer, 

elk, or moose moved interstate to be 

issued by a Federal veterinarian, State 

veterinarian, or accredited veterinarian, 

as discussed in § 81.4, ‘‘Issuance of 

certificates.’’) 

Comments Not Related to the March 

2009 Proposed Rule 

Commenters on the March 2009 

proposed rule raised several issues not 

related to the changes discussed in that 

document. 

Some commenters stated that it was 

difficult to understand the full scope 

and content of the proposed CWD Herd 

Certification Program from the March 

2009 proposed rule because the full text 

of the rule was not included. The 

commenters stated that they had raised 

concerns regarding aspects of the July 

2006 final rule that were not addressed 

in the March 2009 proposed rule. The 

commenters stated that the incomplete 

text left uncertainty about other aspects 

of the program. 

We developed the March 2009 

proposed rule to address issues with 

respect to the July 2006 final rule that 

were raised in the petitions or in 

response to the petitions. Accordingly, 

the March 2009 proposed rule set out 

only the changes that we proposed to 

make to the July 2006 final rule. 

However, we understand that this could 

be confusing. To aid the reader, in this 

final rule we are setting out the entirety 

of the regulatory text in the July 2006 

final rule, with the changes discussed in 

the March 2009 proposed rule and in 

this document. When this final rule 

becomes effective, the provisions in the 

regulatory text at the end of this 

document will be added to the Code of 

Federal Regulations. In addition, we are 

responding in this document to the 

comments we received on aspects of the 

July 2006 final rule that were not 

included in the March 2009 proposed 

rule, as well as other aspects of the 

regulations. 

The regulations currently include in 

§ 55.1 a definition of herd. A herd is 

defined as a group of animals that are 

under common ownership or 

supervision and are grouped on one or 

more parts of any single premises (lot, 

farm, or ranch), or all animals under 

common ownership or supervision on 

two or more premises which are 

geographically separated but on which 

animals have been interchanged or had 

direct or indirect contact with one 

another. 

One commenter stated that this 

definition permits the intrastate, and 

depending on proximity to a State 

border perhaps even the interstate, 

transportation of animals from one 

facility to another regardless of their 

status in the program. 

Any deer, elk, or moose moved 

interstate must meet the requirements of 

part 81. If they are moved intrastate, 

they must meet applicable State 

requirements; Federal regulations do not 

restrict intrastate movement, although 

we do require States that participate in 

the CWD Herd Certification Program to 

have the authority to restrict intrastate 

movement of cervids. The definition of 

herd in part 55 does not have any 

bearing on the movement restrictions in 

part 81. 

The July 2006 final rule included a 

definition of herd plan. Such a plan sets 

out steps to be taken to eradicate CWD 

from a CWD-positive herd, to control 

the risk of CWD in a CWD-exposed or 

CWD-suspect herd, or to prevent the 

introduction of CWD into that herd or 

any other herd. 

Several commenters stated that herd 

plans should not allow reintroduction of 

cervids into a facility previously 

inhabited by CWD-positive animals, 

given evidence about the persistence of 

CWD in the environment and the lack 

of validated methods for 

decontaminating facilities that have 

housed CWD-positive animals. 

One commenter expressed concern 

about the threat a premises that has held 

CWD-positive animals poses to wild 

cervids. This commenter stated that 

fences should remain in place on CWDpositive farms until a scientifically 

proven method has been developed for 

decontaminating facilities. Another 

stated that any premises that has held a 

CWD-positive animal should be 

quarantined for 5 years after the herd is 

depopulated, with no livestock allowed 

on the premises, followed by a 

reevaluation of the land and any 

environmental risk factors. 

We note that all herds that participate 

in the CWD Herd Certification Program 

are required to have perimeter fencing 

under § 55.23(b)(2). As discussed in the 

July 2006 final rule, the definition’s 

language will allow a herd plan to 

prohibit cervids from a premises for an 

appropriate period based on the specific 

risks and conditions of the individual 

herd. Ongoing and future research may 

help resolve many questions about 

environmental transmission of CWD 

and establish reasonable standards for 

when it is safe to repopulate a 

previously contaminated premises. 

We do not consider it necessary to 

require permanent fencing of premises 

that contained CWD-positive herds for 

the purposes of preventing the interstate 

spread of CWD through the movement 

of farmed or captive cervids. However, 

under this final rule, States may impose 

requirements that are more restrictive. 

As discussed earlier in this document, 

in the July 2006 final rule, paragraph 

(a)(4) of § 55.23 requires States to place 

all known CWD-positive, CWD-exposed, 

and CWD-suspect animals and herds 

under movement restrictions, with 

movement of animals from them only 

for destruction or under permit. 

One commenter stated that all CWDpositive herds should be immediately 

quarantined and automatically 

depopulated upon verification of CWDpositive test results from two USDAapproved laboratories, as well as any 

herds traced forward or backward from 

a CWD-positive herd. The commenter 

stated that all cervids in such herds and 


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4Miller, M. W., and M. M. Conner. 2005. 

Epidemiology of chronic wasting disease in freeranging mule deer: spatial, temporal, and 

demographic influences on observed prevalence 

patterns. Journal of Wildlife Diseases 41: 275–290. 

on such premises should be destroyed 

on site. Another commenter stated that 

all animals on game farms should be 

tested for CWD, with any positive test 

resulting in complete herd eradication. 

We do not consider it necessary to 

immediately depopulate CWD-positive 

herds for the purpose of preventing the 

interstate spread of CWD through the 

movement of farmed or captive cervids. 

Animals from such herds will not be 

allowed to be moved interstate under 

this final rule, except directly to 

slaughter or under a research animal 

permit. We note that, under this final 

rule, States may require depopulation of 

CWD-positive and CWD-exposed herds. 

In the July 2006 final rule, paragraph 

(b)(3) of § 55.23 requires herd owners 

participating in the CWD Herd 

Certification Program to make the 

carcasses of all animals that die 

(including animals killed on premises 

maintained for hunting and animals 

sent to slaughter) available for tissue 

sampling and testing in accordance with 

instructions from the APHIS or State 

representative. 

One commenter asked us to consider 

herd plans that do not require 100 

percent testing of all animals that die or 

are killed when developing the 

guidance for implementing the CWD 

regulations. The commenter stated that 

100 percent compliance may not always 

be possible, and expressed concern that 

Certified herds would lose their status 

by failing to provide samples. Another 

commenter stated that the regulations 

need to provide allowances for when 

animals escape or other factors make it 

impossible to provide a sample. 

Testing all animals that die for CWD 

is necessary to establish, through 

surveillance over time, that animals in 

a particular herd are low risk for CWD. 

However, the regulations in § 55.23(b)(3) 

do provide that, in cases where animals 

escape or disappear and thus are not 

available for tissue sampling and 

testing, an APHIS representative will 

investigate whether the unavailability of 

animals for testing constitutes a failure 

to comply with program requirements 

and will affect the herd’s status in the 

CWD Herd Certification Program, 

meaning we have provided the 

appropriate degree of program 

discretion in cases where a herd owner 

finds it impossible to provide samples. 

In this final rule, we are amending 

§ 55.23(b)(3) to indicate that we will 

also investigate program compliance 

when the samples provided are of poor 

quality, thus making it impossible to 

test them for CWD. Providing samples of 

poor quality causes the same problems 

as not providing a sample, and we need 

to be able to test all animals that die in 

a herd that is enrolled in the CWD Herd 

Certification Program. 

One commenter stated that the 

regulations should provide a maximum 

time limit within which carcasses must 

be tested. In the commenter’s State, for 

example, all licensees must submit 

carcasses for testing within 48 hours of 

the cervid’s death to ensure that our 

agency can collect acceptable tissue 

samples for laboratory testing. 

APHIS and the States are responsible 

for collecting the sample, once the 

owner makes it available, and testing it. 

We do so in accordance with guidelines 

that ensure that we have usable 

samples. The regulations in § 55.23(b)(3) 

require herd owners to immediately 

report deaths of deer, elk, or moose 12 

months of age or older, which will give 

us adequate time to collect and test 

samples. 

One commenter stated that the July 

2006 final rule does not prevent the 

owner from removing animal 

identification prior to making cervid 

carcasses available to the State for CWD 

testing. The commenter stated that, if 

tags are removed before testing, cervid 

carcasses cannot be accurately 

identified nor can the movement history 

of individual animals be determined. 

The regulations in § 55.23(b)(1) 

require all animals in a herd that is 

participating in the CWD Herd 

Certification Program to be identified. 

Paragraph (b)(3) requires all reports of 

animals that die to include the 

identification numbers of the animals 

involved. Section 55.25 requires 

animals in the program to be identified 

with an electronic implant, flank tattoo, 

ear tattoo, tamper-resistant ear tag, or 

another device approved by APHIS. 

Such identification cannot be removed 

from the animal without leaving 

evidence that the identification has been 

removed, thus indicating 

noncompliance with the regulations. 

These requirements, taken together, 

address the commenter’s concern. 

Several commenters noted that, under 

§ 55.24(a), Certified herds are not 

required to conduct slaughter 

surveillance and surveillance of animals 

killed in shooter operations. One 

commenter recommended that we 

require all animals that die to be tested 

for CWD in order to ensure that any 

CWD present in captive cervid facilities 

is detected. 

Some commenters focused on shooter 

operations as a potential risk, stating 

that such facilities tend to be large, 

which creates more potential for ingress 

and egress of cervids, and are difficult 

to accurately inventory. These 

commenters stated that such 

circumstances make it even more 

important to maintain surveillance in 

those facilities. 

Another commenter noted generally 

that there are data indicating that CWD 

prevalence is higher in adult male deer.4

Since CWD can occur at a low 

prevalence and is difficult to detect, the 

commenter stated, excluding any animal 

from the testing requirement decreases 

the chances of detecting the disease 

when present. Thus, the commenter 

stated, excluding adult male deer that 

die or are killed on a premises would 

not be appropriate. 

We agree that CWD can be difficult to 

detect even in infected animals. For 

example, in one herd that was 

depopulated in Minnesota, multiple elk 

that had shown no clinical signs of 

CWD turned out to be CWD-positive 

after testing. Animals in such a 

circumstance and in a Certified herd 

would not have been required to be 

tested for CWD under § 55.24(a). This 

indicates that we need to continue 

slaughter surveillance and surveillance 

of animals killed in shooter operations 

in order to provide additional certainty 

that Certified herds contain only 

animals that are low risk for CWD. 

Therefore, we are removing the 

provision in § 55.24(a) allowing 

Certified herds not to conduct slaughter 

surveillance and surveillance of animals 

killed in shooter operations. 

We will, however, continue to 

evaluate the effectiveness of these 

regulations and will revisit this issue 

after the program has been established 

for some reasonable period of time. 

More scientific research may become 

available that guides our thinking on the 

most efficient, cost-effective forms of 

CWD surveillance. 

With respect to the concerns specific 

to shooter operations, we note that, for 

herds in the CWD Herd Certification 

Program, herd premises must have 

perimeter fencing adequate to prevent 

ingress and egress of cervids under 

§ 55.23(b)(2). The herd owner must also 

allow for an inventory, as described in 

§ 55.23(b)(4). Herds that cannot meet 

these requirements would not be 

eligible for the program. 

One commenter stated that the final 

rule requires testing only of cervids 16 

months of age or older. The commenter 

stated that cervids are apparently 

susceptible to CWD at birth and CWD 

has been documented in cervids as 

young as 9 months of age. In the 

commenter’s State, licensees are 

required to test all captive cervids 6 


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months of age or older that die for any 

reason. The commenter suggested that 

we change our requirement to apply to 

all cervids 6 months of age or older. 

As mentioned earlier, our regulations 

require that herd owners report the 

deaths of all cervids 12 months of age 

or older, not 16 months, and make the 

carcasses of those animals available for 

tissue sampling and testing. As 

discussed in the July 2006 final rule, the 

12-month standard is based on our best 

approximation of the point where the 

value of additional epidemiological 

information exceeds the costs to 

producers and to program 

administration of testing younger 

animals. We will continue to review this 

standard as we gain more experience 

with the CWD Herd Certification 

Program and as new scientific 

information becomes available. 

One commenter stated that paragraph 

(b)(3) of § 55.23 in the July 2006 final 

rule identifies APHIS employees and 

State representatives as people who can 

collect CWD test samples. The 

commenter stated that there is no 

definition of a State representative. 

Facing large volumes of CWD test 

samples, the commenter’s State has 

established a formal program to certify 

private-sector collectors to provide 

routine surveillance samples for CWD 

program herds. The commenter stated 

that this program has the full confidence 

of APHIS staff in the State and that the 

regulations should recognize the 

program by defining ‘‘State 

representative’’ as a designated 

individual trained by the State in 

addition to accredited veterinarians and 

State or Federal officials. 

The commenter is mistaken about the 

requirements of paragraph (b)(3); they 

do not discuss sample collection or 

testing, but merely require the owner to 

notify an APHIS employee or State 

representative of animals that escape, 

disappear, or die, and to make the 

carcasses of animals that die available 

for tissue sampling and testing in 

accordance with instructions from the 

APHIS or State representative. 

However, we will work out 

procedures for sample collection and 

testing with States that have Approved 

State CWD Herd Certification Programs 

under § 55.22(b). In general, we would 

require that any private-sector collectors 

of CWD samples operate within a 

structure that provides accountability to 

the State and APHIS, as the program in 

the commenter’s State does. 

It should also be noted that § 55.1 

does contain a definition of State 

representative, which reads as follows: 

‘‘A person regularly employed in the 

animal health work of a State and who 

is authorized by that State to perform 

the function involved under a 

cooperative agreement with the United 

States Department of Agriculture.’’ We 

are amending this definition in this final 

rule to remove the reference to 

performing functions under a 

cooperative agreement, as not all 

functions performed by a State 

representative under the regulations 

will be performed under a cooperative 

agreement. 

In the July 2006 final rule, paragraph 

(c) of § 55.24 provides that the 

Administrator may cancel enrollment 

after determining that the herd owner 

failed to comply with any requirements 

of § 55.24. 

One commenter stated that the final 

rule does not include definitive actions 

or mechanisms to decertify captive 

herds if the owners fail to meet the 

program’s requirements after they have 

been certified. These should include 

actions that will be taken if, for 

example, animals are not properly 

tagged, animals are not tested, fences are 

not maintained, or if the required 

records are incorrect, mishandled, or 

not provided. 

We intended that paragraph (c) 

indicate that the Administrator may 

cancel enrollment after determining that 

the herd owner failed to comply with 

any requirements of subpart B in part 

55. This would include failure to 

comply with the requirements the 

commenter mentioned, as well as failure 

to comply with herd plans and other 

important provisions of the CWD Herd 

Certification Program. Accordingly, this 

final rule corrects that provision of the 

regulations. 

As the commenter implies, sometimes 

we may take actions short of 

cancellation in response to a failure to 

comply with the regulations. Because 

individual cases of failure to comply 

with the regulations will be different, 

we believe it is appropriate to make 

decisions on a case-by-case basis. 

However, with this change, we will 

make clear that the consequences of 

violations of the requirements can 

include cancellation of enrollment if the 

Administrator should determine that it 

is necessary and appropriate. 

Paragraph (c) also provides that, in 

the event that a herd’s enrollment is 

canceled, the herd owner may not 

reapply to enroll in the CWD Herd 

Certification Program for 5 years from 

the effective date of the cancellation. 

One commenter expressed concern that, 

because it takes 5 years for a herd to 

achieve Certified status, a herd owner 

whose enrollment was canceled would 

need 10 years to return a herd to 

Certified status. The commenter 

recommended allowing re-enrollment of 

canceled herds immediately. 

We have reevaluated the provision 

and determined that the 5-year 

enrollment waiting period is not 

necessarily appropriate. While the 

animals from a herd whose enrollment 

has been canceled should not be moved 

interstate, it increases the strength of the 

CWD Herd Certification Program to have 

monitoring in place for those animals 

through the program. In addition, under 

the July 2006 final rule, after the 5-year 

waiting period is up, the owner of a 

herd whose enrollment is canceled 

could assemble a new herd composed of 

animals from Certified herds and thus 

be granted Certified status immediately, 

with no opportunity to monitor the 

owner’s compliance before animals 

begin moving interstate from the herd. 

To provide for monitoring of both 

types of herds, we are changing 

§ 55.24(c) to indicate that any herd 

enrolled in the CWD Herd Certification 

Program by an owner whose herd’s 

enrollment has been canceled may not 

reach Certified status until 5 years after 

the herd owner’s new application for 

enrollment is approved by APHIS, 

regardless of the status of the animals of 

which the herd is composed. This 

change will provide for herds whose 

enrollment is canceled to immediately 

re-enter the program and thus be subject 

to monitoring. It will also ensure that 

newly assembled herds whose owners’ 

enrollment was previously canceled are 

subject to thorough monitoring before 

animals from those herds can move 

interstate. 

In the July 2006 final rule, § 55.25 set 

out requirements for animal 

identification for herds enrolled in the 

CWD Herd Certification Program. One 

commenter stated that the identification 

of individual cervids could be 

problematic, especially if animals have 

to be physically or chemically 

restrained. The commenter stated that 

animals would be put at serious risk of 

stress and injury, and identification 

could be cost-prohibitive if large 

quantities of immobilizing drugs are 

necessary. The commenter asked that 

we consider a redundant system of two 

industry-accepted herd identification 

methods, which may include ear 

notches, ear tattoos, ear tags, and 

transponders. 

As discussed earlier, identification of 

animals in herds enrolled in the CWD 

Herd Certification Program is essential 

in order to allow for accurate inventory 

and tracking of the interstate movement 

of animals moved from enrolled herds. 

Without such information, we cannot 

conduct the surveillance and 

epidemiological investigations that are 


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necessary to determine whether animals 

from a herd are low risk for CWD. We 

consider the requirements in § 55.23 for 

two approved forms of identification, 

one of which meets the definition of 

official animal identification in § 55.1, 

essential to ensure the integrity of the 

animal identification used by herds 

enrolled in the program. Herds that 

cannot comply will not be eligible to 

participate in the voluntary CWD Herd 

Certification Program. 

In the July 2006 final rule, part 81 

contained restrictions on the interstate 

movement of deer, elk, and moose. The 

July 2006 final rule included in § 81.1 

a definition of deer, elk, and moose that 

includes all animals of the genera 

Odocoileus, Cervus, and Alces and their 

hybrids. This definition is important in 

part 81 because the movement 

restrictions in that part apply only to 

deer, elk, and moose. 

One commenter stated that all species 

in the family Cervidae should be 

included in the rule and in the CWD 

Herd Certification Program, stating that 

it is prudent to include all cervids until 

further research indicates that such deer 

cannot be infected with or spread CWD. 

We have not expanded coverage to 

genera in which no species has 

demonstrated susceptibility via natural 

routes of transmission. To do so would 

extend the requirements of this rule 

without a sound basis, unnecessarily 

increasing the burden on regulated 

parties, especially zoos with large and 

varied animal collections. We are 

prepared to extend the definition in the 

future if new research demonstrates 

additional species in other genera are 

susceptible to CWD by natural routes of 

transmission. For example, we made a 

change in the July 2006 final rule to add 

moose to the animals covered by the 

regulations. 

One commenter asked why all deer, 

elk, and moose herds need to be 

enrolled in the CWD program in order 

to move interstate when only a limited 

number of cervid species within those 

respective genera have been identified 

as being CWD susceptible. 

As discussed in the July 2006 final 

rule, the definition of deer, elk, and 

moose was developed by identifying the 

species known to be susceptible to 

natural spread of CWD and then 

expanding coverage to the complete 

genera that include these species, under 

the assumption that related animals in 

a genus may share similar susceptibility 

to CWD even when all species in the 

genus have not been shown to be 

susceptible. Based on the progress of 

knowledge about susceptible species 

over recent years, we believe this to be 

a scientifically sound and prudent 

assumption. We will continue to 

evaluate scientific evidence on this 

issue; if necessary at some point in the 

future, we will adjust the scope of our 

regulations. 

One commenter suggested that we 

include in § 81.1 a definition of 

certificate, to complement the 

requirements for a certificate in part 81. 

The commenter suggested that the 

definition be similar to the definition of 

origin health certificate in 9 CFR part 

91, which deals with export 

certification. 

The regulations in § 81.4(a) describe 

in detail the information required on 

certificates issued for interstate 

movement in accordance with part 81. 

The definition of origin health 

certificate in part 91 is largely devoted 

to explaining what information must be 

included on such a certificate. 

Consequently, we do not see a need to 

add such a definition to part 81. 

In the July 2006 final rule, § 81.3 

contains general restrictions on the 

interstate movement of deer, elk, and 

moose. Paragraph (b) of § 81.3 contains 

restrictions on the interstate movement 

of captive deer, elk, or moose that are 

captured from a wild population for 

interstate movement and release. Such 

animals must have two forms of animal 

identification, one of which is official 

animal identification, and a certificate 

accompanying the animal must 

document the source population to be 

low risk for CWD, based on a CWD 

surveillance program that is approved 

by the State Government of the 

receiving State and by APHIS. 

Several commenters expressed 

concerns about these provisions. These 

commenters largely stated that the 

interstate movement of animals from 

wild populations should be subject to 

the same requirements as the interstate 

movement of animals from farmed or 

captive herds. Some commenters stated 

that captive animals are more 

thoroughly and continually monitored 

and restricted in their movement, and 

the percentage of infection with CWD in 

wildlife is much higher than in captive 

cervids. Another commenter noted that 

State fish and wildlife agencies may 

lack the funding and manpower 

necessary to conduct surveillance, 

meaning that some States may not be 

able to monitor the animals once they 

are released in the destination State. 

The requirements for translocation are 

minimum requirements intended to 

regulate a practice that has been 

occurring. Without the provisions in 

§ 81.3(b), there would have been no 

Federal CWD-related restrictions on the 

interstate movement of such animals. As 

one commenter pointed out, 

translocation can spread CWD; 

therefore, we determined that it was 

appropriate to put in place some 

restrictions on this movement. 

We do not consider it practical to 

make the interstate movement of 

animals from wild populations subject 

to the same requirements as the 

interstate movement of animals from 

farmed or captive herds. Animals 

moved interstate from farmed or captive 

herds must come from a Certified herd, 

meaning they have been inventoried 

and monitored for 5 years to determine 

that they are low risk for CWD. It would 

be impossible to monitor wild animals 

in the same way we monitor farmed or 

captive animals. We note that, under 

this final rule, any State will be able to 

further restrict, or prohibit, the 

movement of animals captured from 

wild populations into the State. 

As discussed earlier in this document, 

we encourage States to continue to 

perform surveillance in wild 

populations, both to facilitate the 

interstate movement of animals from 

wild populations and to understand the 

presence of CWD in their States 

generally. 

In the July 2006 final rule, paragraph 

(c) of § 81.3 contained requirements for 

the interstate movement of deer, elk, 

and moose to slaughter. Two 

commenters asked that States be 

allowed to place additional 

requirements on such movement; one 

asked for a requirement that States be 

notified of such movement, and another 

asked that States be allowed to require 

a permit to ensure that the animals are 

moved directly to a slaughter facility. 

Under this final rule, States can 

impose both of these additional 

requirements, as well as any other 

additional requirements they determine 

to be necessary, on movement to 

slaughter. 

Some commenters asked questions 

regarding participation in the program. 

One requested that all nonsusceptible 

species be permitted to participate in 

the CWD Herd Certification Program on 

a voluntary basis, as movement 

restrictions imposed by States have had 

economic impacts on industry. If this 

change was made, the commenter asked 

that visible identification not be 

required for reindeer used for exhibition 

purposes. Another asked why reindeer 

are not included in the indemnity 

provisions in part 55. 

We did not provide for the 

participation of species not known to be 

susceptible to CWD in the CWD Herd 

Certification Program because their 

interstate movement does not pose a 

risk of spreading CWD. Under this final 

rule, States will continue to be free to 


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35562 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Rules and Regulations 

impose restrictions on the interstate 

movement of farmed or captive cervids 

for any reason, not just related to CWD. 

We recognize that the regulations may 

have created some confusion on this 

point. We published an interim rule in 

the Federal Register on February 8, 

2002 (Docket No. 00–108–1, 67 FR 

5925–5934) that established part 55. 

This rule defined animal as any captive 

cervid and stated that we would pay 

indemnity for CWD-positive animals, 

CWD-exposed animals, and CWDsuspect animals. However, of the 

animals in the family Cervidae, only 

deer, elk, and moose are known to be 

susceptible to CWD. We have not 

provided in our regulations for payment 

of indemnity for animals that are not 

susceptible to CWD, and we do not 

provide for their participation in the 

CWD Herd Certification Program, which 

is limited to deer, elk, and moose. 

Accordingly, this final rule amends 

the definition of animal in § 55.1 to 

read: ‘‘Any farmed or captive deer, elk, 

or moose.’’ This clarifies the regulations 

in part 55 and makes the definition of 

animal in that part consistent with the 

definition of animal in § 81.1. 

The February 2002 interim rule also 

defined cervid as all members of the 

family Cervidae and hybrids, including 

deer, elk, moose, caribou, reindeer, and 

related species. While this is an accurate 

definition of the word ‘‘cervid,’’ it may 

have created confusion; the provisions 

of part 55 contain several references to 

cervids in the context of payment of 

indemnity, but only animals that are 

susceptible to CWD are eligible for 

indemnity. Accordingly, we are 

amending the definition of cervid as 

well, to indicate that for the purposes of 

part 55, the term ‘‘cervid’’ refers to 

animals in the genera Odocoileus, 

Cervus, and Alces and their hybrids, 

i.e., deer, elk, and moose. As the July 

2006 final rule included an identical 

definition of cervid in part 81, we are 

amending that definition as well. 

Two commenters expressed concern 

that the July 2006 final rule and the 

March 2009 proposed rule did not 

include specific details on how the 

CWD Herd Certification Program will 

operate. One stated that the rule should 

refer to a document that specifies the 

proper management of captive herds. 

Both of these commenters expressed 

specific concern about the lack of 

information about sample collection and 

testing. 

Another commenter asked that we 

provide detailed information on how 

infected herds will be dealt with, i.e., 

quarantine and testing, depopulation, 

cleaning and disinfection, and fence 

maintenance requirements. 

The optimal methods for most 

specific aspects of the CWD Herd 

Certification Program will vary among 

States. For States that already have CWD 

programs, we will review their specific 

methods and determine whether they 

are adequate to meet the performance 

standards set out in § 55.23(a). We will 

also develop a program standards 

document that will provide detailed 

guidance on the implementation of and 

compliance with the regulations, 

including sample collection and testing 

and the actions taken when a herd is 

quarantined. This approach gives States 

and herd owners flexibility to achieve 

performance-based standards and will 

allow us to update the guidance 

whenever it becomes necessary. For 

example, in the future, new scientific 

evidence about CWD may indicate that 

different testing or cleaning and 

disinfection methods are appropriate; 

we will update our guidance if such 

evidence becomes available. 

With respect to sample collection and 

testing, these activities will be overseen 

by APHIS employees and State 

representatives. We will have systems in 

place to ensure that people who collect 

samples are performing these activities 

correctly. Standards for approval of 

CWD testing laboratories are already 

found in § 55.8(d). 

One commenter expressed concern 

about zoos’ continued ability to hold 

and transport deer, elk, and moose for 

the purposes of public display, outreach 

education, and cooperative breeding 

programs. The commenter stated that 

the proposed rule is specific to the deer, 

elk, and moose farming community and 

does not address the specific needs and 

unique circumstances of the accredited 

zoo community. The commenter 

proposed that a method be developed to 

allow the movement of captive deer, elk, 

and moose by and between zoos that are 

accredited by the Association of Zoos 

and Aquariums, based on that 

association’s guidelines for CWD 

surveillance in captive cervids in zoos. 

The regulations in § 81.3(e) provide 

for the Administrator to issue a permit 

for the interstate movement of captive 

deer, elk, or moose in cases where the 

Administrator determines that adequate 

survey and mitigation procedures are in 

place to prevent dissemination of CWD. 

If a zoo presents evidence establishing 

that its survey and mitigation 

procedures are adequate to prevent 

dissemination of CWD, we will allow 

the interstate movement of animals from 

that zoo. We plan to work with zoos on 

how such movement might occur, and 

we may develop a proposal for 

stakeholder consideration to establish a 

zoo movement protocol in the future. 

We note that, as this final rule does 

not preempt State laws and regulations 

that are more restrictive than our 

regulations, the interstate movement of 

captive deer, elk, and moose between 

zoos may be subject to additional State 

restrictions or prohibitions. 

One commenter stated that the 

interstate movement of deer body parts 

should be restricted so that hunted deer 

parts from areas where CWD is endemic 

do not enter nonendemic areas. 

The movement of deer parts in 

interstate commerce for human or 

animal consumption is regulated by the 

Food and Drug Administration. States 

may also have restrictions on the entry 

of deer parts and products. 

One commenter, noting that we stated 

in the July 2006 final rule that there 

exists no live animal test for CWD, 

stated that there are two live-animal 

tests available: Tonsillar and rectal 

biopsies. The commenter stated that the 

tests are currently not recognized by all 

government entities, but could be a 

beneficial tool for research and whole 

herd surveillance. The commenter also 

recommended that we require all deer, 

elk, and moose moved interstate to have 

a live-animal test performed at least 30 

days before transport. Two commenters 

stated that the regulations should take 

into account the possibility of an 

accepted live-animal test becoming 

available. 

These tests have not yet been 

determined to be effective at detecting 

CWD in live animals, and thus we do 

not recognize them as official tests for 

use in the CWD Herd Certification 

Program. We certainly encourage 

research into methods for live-animal 

CWD detection. If and when an official 

live-animal test becomes available, we 

will amend the regulations to take its 

availability into account. 

One commenter encouraged us to 

work with the U.S. Department of the 

Interior to develop disease eradication 

plans in U.S. wildlife, since it is obvious 

that domestic animal diseases, such as 

brucellosis in bison and elk, bovine 

tuberculosis in deer and elk, CWD in 

cervids, and scrapie in Big Horn sheep, 

can greatly impact wildlife and result in 

devastating economic loss to domestic 

livestock industries and business 

communities that depend on hunting for 

an economic base. 

Wild deer and elk, as well as other 

wild animals, are State resources, unless 

they are on Federal land, in which case 

the Department of the Interior may be 

involved. We work with the States and 

with the Department of the Interior on 

research and mitigation development to 

help prevent disease transmission 

between wildlife and livestock. 


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Two commenters addressed 

importation of deer, elk, and moose. 

One stated that we should prohibit the 

importation of cervids from countries 

where CWD is present until those 

countries develop a herd monitoring 

and certification program that is 

equivalent to our program. The other 

stated that CWD-free countries are not 

likely to have an ongoing CWD 

surveillance program, meaning that it 

would be appropriate to allow the 

importation of cervids from CWD-free 

countries without requiring a herd 

surveillance program in the country of 

origin. 

We restrict the importation of 

ruminants generally in 9 CFR part 93, 

Subpart D, which covers the 

importation of all ruminants. We plan to 

implement CWD-specific import 

requirements in the future; when we do, 

they will be equivalent to our 

requirements for interstate movement, 

in keeping with our commitments as a 

member of the World Trade 

Organization. Therefore, we agree with 

the first commenter. With respect to the 

second commenter’s recommendation, 

one component of maintaining diseasefree status is performing ongoing 

surveillance to confirm continued 

freedom from the disease, and we would 

require such surveillance for imported 

cervids. 

Miscellaneous Changes 

In the July 2006 final rule, paragraph 

(b) of § 55.22 indicated that owners of 

farmed or captive deer, elk, or moose 

herds could apply to enroll in a Federal 

CWD Herd Certification Program if no 

State CWD Herd Certification program 

exists in the herd’s State. Although we 

were prepared to establish such a 

program in 2006, changes in 

appropriated funds for the CWD 

program may make it impossible to do 

so in the future. We are amending 

paragraph (b) to indicate that the option 

of a Federal CWD Herd Certification 

Program will be subject to the 

availability of appropriated funds. If a 

Federal CWD Herd Certification 

Program cannot be made available to 

herd owners, they will have to 

participate in an Approved State CWD 

Herd Certification Program in order for 

their herds to achieve Certified status 

and thus be eligible to move interstate 

under part 81. 

In the July 2006 final rule, paragraph 

(a)(10) of § 55.23 indicates that States 

are responsible for maintaining certain 

data in the CWD National Database 

administered by APHIS, or in a State 

database approved by the Administrator 

as compatible with the CWD National 

Database. However, references to the 

CWD National Database in §§ 55.25 and 

81.2 do not also provide for the use of 

a State database that is compatible with 

the CWD National Database. 

Accordingly, we are amending those 

references to the CWD National 

Database to indicate that the required 

data may be found either in the CWD 

National Database or in an approved 

State database. 

In this final rule, we are revising the 

definition of Administrator in § 55.1 to 

read: ‘‘The Administrator, Animal and 

Plant Health Inspection Service, or any 

person authorized to act for the 

Administrator.’’ The definition of 

Administrator in § 55.1 currently limits 

those who can act for the Administrator 

to APHIS employees, but State 

representatives may be authorized in 

some cases to fulfill tasks assigned to 

the Administrator in the context of 

operating their State CWD Herd 

Certification Programs. We are also 

adding this definition of Administrator 

to § 81.1. 

In the July 2006 final rule, we revised 

the definition of CWD-positive animal to 

state that such an animal must have its 

diagnosis confirmed by means of two 

official CWD tests. In the Background 

section of that final rule, we stated that 

we expect that, in most cases, the first 

test would be conducted by a State, 

Federal, or university laboratory 

approved to conduct CWD official tests 

in accordance with § 55.8, and, if the 

first test was positive, a second, 

confirmatory test would be conducted at 

NVSL to confirm the diagnosis of CWD. 

In some cases, both the initial and 

confirmatory test may be conducted at 

NVSL. 

However, stating that two official tests 

are conducted could indicate to readers 

that two different types of official tests 

must be conducted in order for an 

animal to be determined to be CWDpositive, which is not correct; our intent 

was to indicate that there must be two 

positive results, which may be from the 

same type of test. The definition also 

does not indicate that NVSL is the 

confirmatory laboratory. The intent 

behind our changes was to indicate that 

an animal will be determined to be a 

CWD-positive animal only after an 

initial positive result and subsequent 

official confirmatory testing conducted 

by NVSL. As indicated in the July 2006 

final rule, official confirmatory testing 

by NVSL is required whether the initial 

test was conducted by an approved 

laboratory or by NVSL itself. Therefore, 

we are amending the definition of CWDpositive animal to indicate that such an 

animal must have its diagnosis of CWD 

established through official 

confirmatory testing conducted by 

NVSL. 

We are also reorganizing § 55.25 by 

moving the second sentence to the end 

of the section, to improve clarity. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, with the changes discussed in this 

document. 

IV. Compliance With Other Statutes 

and Executive Orders 

Executive Orders 12866 and 13563 and 

Regulatory Flexibility Act 

This final rule has been determined to 

be significant for the purposes of 

Executive Order 12866 and, therefore, 

has been reviewed by the Office of 

Management and Budget. 

We have prepared an economic 

analysis for this rule. The economic 

analysis provides a cost-benefit analysis, 

as required by Executive Orders 12866 

and 13563, which direct agencies to 

assess all costs and benefits of available 

regulatory alternatives and, if regulation 

is necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, and equity). Executive Order 

13563 emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. The 

economic analysis also provides a final 

regulatory flexibility analysis that 

examines the potential economic effects 

of this rule on small entities, as required 

by the Regulatory Flexibility Act. The 

economic analysis is summarized 

below. 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 amends a suspended 

final rule published in July 2006, for the 

control of chronic wasting disease 

(CWD) in farmed or captive cervids 

(deer, elk, and moose) in the United 

States. The July 2006 final rule 

established a voluntary Herd 

Certification Program that included 

CWD monitoring and testing 

requirements and set interstate 

movement restrictions. APHIS 

suspended the July 2006 final rule 

indefinitely to reconsider several of its 

requirements in response to petitions 

from the public and comments on those 

petitions. In this document, we examine 

expected benefits and costs of the July 

2006 final rule, as amended by this final 

rule. With publication of this final rule 

and concurrent removal of the 


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suspension of the July 2006 final rule, 

farmed or captive deer, elk, and moose 

herd owners who choose to participate 

in the Herd Certification Program will 

have to meet program requirements for 

animal identification, testing, and herd 

management. With certain exceptions, 

only deer, elk, and moose from Certified 

herds will be eligible for interstate 

movement. 

Amendments to the July 2006 final 

rule include the following: (i) The 

Federal CWD regulations will set 

minimum requirements for interstate 

movement, while States will be allowed 

to impose additional requirements; (ii) 

cervids allowed to be moved interstate 

(other than ones moving to slaughter or 

for research), 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; (iii) farmed or 

captive cervids, when en route to 

another State, will be allowed to transit 

through States that otherwise ban or 

restrict their entry; (iv) 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; (v) certified cervids that die 

or are killed at slaughter or on shooter 

operations will be required to be tested 

for CWD; and (vi) there will be optional 

confirmatory DNA test provisions for 

animals that test CWD-positive. 

Implementation of the July 2006 final 

rule as amended by this final rule is 

expected to result in both positive and 

negative economic effects for herd 

owners and States, with benefits and 

costs depending on herd owners’ 

existing management practices and 

marketing activities and States’ current 

provisions with respect to CWD control. 

Overall benefits of the rule are expected 

to exceed its costs. Foremost, the July 

2006 rule, as amended, will help 

prevent the spread of CWD among 

States and facilitate interstate movement 

of healthy cervids. The Herd 

Certification Program will also promote 

U.S. producers’ access to international 

markets for cervid products such as 

antler velvet. 

The regulations will provide uniform 

minimum requirements for interstate 

movement. This final rule will allow 

States to enact and administer stricter 

CWD status requirements for cervids 

entering from other States. As at 

present, herd owners’ interstate 

marketing decisions may need to 

account for dissimilar State CWD 

certification regulations. 

Some herd owners also 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 HCP’s 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 HCP in the national CWD HCP 

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. The annual inventory 

cost is estimated to average about $25 to 

$30 per deer or elk, including the 

animals’ physical inventory once every 

three 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 

between 1.25 and 1.50 percent of the 

value of a farmed or captive deer and to 

between 1.14 and 1.36 percent of the 

value of a farmed or captive elk. 

The requirement that cervids from 

herds participating in the certification 

program be tested for CWD when they 

die or are killed (including slaughter) 

will entail submission of the carcass or 

whole head for tissue sampling and 

testing or collection of the tissue sample 

by an approved veterinarian. 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. 

Herd owners will have the option of 

using confirmatory DNA testing 

provisions to verify that the sample 

tested is from the animal in question, 

although APHIS is confident that the 

existing chain-of-custody processes for 

CWD testing are effective. Owners who 

choose confirmatory DNA testing will 

consider it a benefit, as evidenced by 

their voluntary payment for this test. 

Most cervid operations are small 

entities. The rule will have a positive 

overall economic impact on affected 

entities large and small, and the U.S. 

cervid industries generally, in 

controlling the spread of CWD and 

facilitating interstate and international 

trade in cervids and cervid products. 

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 12988 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule: (1) Preempts 

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. 

Executive Order 13175 

APHIS sent a letter notifying all 565 

federally recognized Tribes of the 

proposed changes to the CWD 

regulations. APHIS requested from 

Tribes all comments based on potential 

impacts and outcomes concerning the 

March 2009 proposed rule. APHIS 

offered to conduct conference calls or 

formal consultations with Tribal leaders 

if requested. APHIS did not receive any 

comments from Tribes regarding the 

March 2009 proposed rule. 

Paperwork Reduction Act 

In accordance with section 3507(d) of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.), we published 

a notice in the Federal Register on 

January 24, 2012 (77 FR 3434–3435, 

Docket No. APHIS–2011–0032), 

announcing our intention to reinstate 

the information collection associated 

with the July 2006 final rule and 

soliciting comments on it. We are asking 

the Office of Management and Budget 

(OMB) to approve our use of this 

information collection for 3 years. When 

OMB notifies us of its decision, we will 

publish a document in the Federal 

Register providing notice of the 

assigned OMB control number or, if 

approval is denied, providing notice of 

what action we plan to take. 

E-Government Act Compliance 

The Animal and Plant Health 

Inspection Service is committed to 

compliance with the E-Government Act 

to promote the use of the Internet and 


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other information technologies, to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. For information pertinent to 

E-Government Act compliance related 

to this rule, please contact Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

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, for the reasons set forth 

in the preamble under the authority at 

7 U.S.C. 8301–8317 and 7 CFR 2.22, 

2.80, and 371.4, we are announcing the 

effective date of the final rule published 

on July 21, 2006 (71 FR 41682) and 

further amending 9 CFR Chapter I as 

follows: 

PART 55—CONTROL OF CHRONIC 

WASTING DISEASE 

■ 1. The authority citation for part 55 is 

revised to read as follows: 

Authority: 7 U.S.C. 8301–8317; 7 CFR 

2.22, 2.80, and 371.4. 

■ 2. Section 55.1 is amended as follows: 

■ a. In the definition of State 

representative, by removing the words 

‘‘under a cooperative agreement with 

the United States Department of 

Agriculture’’. 

■ b. By revising the definitions of 

Administrator, animal, cervid, CWDexposed animal, CWD-positive animal, 

CWD-suspect animal, herd plan, official 

animal identification, and premises 

identification number (PIN) to read as 

set forth below. 

■ c. By adding definitions for accredited 

veterinarian and National Uniform 

Eartagging System, in alphabetical 

order, to read as set forth below. 

§ 55.1 Definitions. 

Accredited veterinarian. A 

veterinarian approved by the 

Administrator in accordance with part 

161 of this chapter to perform functions 

specified in subchapters B, C, and D of 

this chapter. 

Administrator. The Administrator, 

Animal and Plant Health Inspection 

Service, or any person authorized to act 

for the Administrator. 

Animal. Any farmed or captive deer, 

elk, or moose. 

* * * * * 

Cervid. All members of the family 

Cervidae and hybrids, including deer, 

elk, moose, caribou, reindeer, and 

related species. For the purposes of this 

part, the term ‘‘cervid’’ refers 

specifically to cervids susceptible to 

CWD. These are animals in the genera 

Odocoileus, Cervus, and Alces and their 

hybrids, i.e., deer, elk, and moose. 

CWD-exposed animal. An animal that 

is part of a CWD-positive herd, or that 

has been exposed to a CWD-positive 

animal or contaminated premises within 

the previous 5 years. 

CWD-positive animal. An animal that 

has had a diagnosis of CWD established 

through official confirmatory testing 

conducted by the National Veterinary 

Services Laboratories. 

* * * * * 

CWD-suspect animal. An animal for 

which an APHIS employee or State 

representative has determined that 

unofficial CWD test results, laboratory 

evidence or clinical signs suggest a 

diagnosis of CWD, but for which official 

laboratory results have been 

inconclusive or not yet conducted. 

* * * * * 

Herd plan. A written herd and/or 

premises management agreement 

developed by APHIS in collaboration 

with the herd owner, State 

representatives, and other affected 

parties. The herd plan will not be valid 

until it has been reviewed and signed by 

the Administrator, the State 

representative, and the herd owner. A 

herd plan sets out the steps to be taken 

to eradicate CWD from a CWD-positive 

herd, to control the risk of CWD in a 

CWD-exposed or CWD-suspect herd, or 

to prevent introduction of CWD into 

that herd or any other herd. A herd plan 

will require specified means of 

identification for each animal in the 

herd; regular examination of animals in 

the herd by a veterinarian for clinical 

signs of disease; reporting to a State or 

APHIS representative of any clinical 

signs of a central nervous system 

disease or chronic wasting condition in 

the herd; maintaining records of the 

acquisition and disposition of all 

animals entering or leaving the herd, 

including the date of acquisition or 

removal, name and address of the 

person from whom the animal was 

acquired or to whom it was disposed; 

and the cause of death, if the animal 

died while in the herd. A herd plan may 

also contain additional requirements to 

prevent or control the possible spread of 

CWD, depending on the particular 

circumstances of the herd and its 

premises, including but not limited to 

depopulation of the herd, specifying the 

time for which a premises must not 

contain cervids after CWD-positive, 

-exposed, or -suspect animals are 

removed from the premises; fencing 

requirements; selective culling of 

animals; restrictions on sharing and 

movement of possibly contaminated 

livestock equipment; premises cleaning 

and disinfection requirements; or other 

requirements. A herd plan may be 

reviewed and changes to it suggested at 

any time by any party signatory to it, in 

response to changes in the situation of 

the herd or premises or improvements 

in understanding of the nature of CWD 

epidemiology or techniques to prevent 

its spread. The revised herd plan will 

become effective after it is reviewed by 

the Administrator and signed by the 

Administrator, the State representative, 

and the herd owner. 

* * * * * 

National Uniform Eartagging System. 

A numbering system for the official 

identification of individual animals in 

the United States providing a nationally 

unique identification number for each 

animal. The National Uniform 

Eartagging System employs an eight- or 

nine-character alphanumeric format, 

consisting of a two-number State or 

territory code, followed by two or three 

letters and four additional numbers. 

Official APHIS disease control programs 

may specify which format to employ. 

* * * * * 

Official animal identification. A 

device or means of animal identification 

approved for use under this part by 

APHIS to uniquely identify individual 

animals. Examples of approved official 

animal identification devices are listed 

in § 55.25. The official animal 

identification must include a nationally 

unique animal identification number 

that adheres to one of the following 

numbering systems: 

(1) National Uniform Eartagging 

System. The CWD program allows the 

use of either the eight-character or ninecharacter format for cervids. 

(2) Animal identification number 

(AIN). 

(3) Premises-based number system. 

The premises-based number system 

combines an official premises 

identification number (PIN), as defined 

in this section, with a producer’s 

livestock production numbering system 

to provide a unique identification 

number. The PIN and the production 

number must both appear on the official 

tag. 


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(4) Any other numbering system 

approved by the Administrator for the 

identification of animals in commerce. 

* * * * * 

Premises identification number (PIN). 

A nationally unique number assigned by 

a State, Tribal, and/or Federal animal 

health authority to a premises that is, in 

the judgment of the State, Tribal, and/ 

or Federal animal health authority, a 

geographically distinct location from 

other premises. The premises 

identification number is associated with 

an address, geospatial coordinates, and/ 

or location descriptors which provide a 

verifiably unique location. The premises 

identification number may be used in 

conjunction with a producer’s own 

livestock production numbering system 

to provide a unique identification 

number for an animal. It may also be 

used as a component of a group/lot 

identification number. The premises 

identification number may consist of: 

(1) The State’s two-letter postal 

abbreviation followed by the premises’ 

assigned number; or 

(2) A seven-character alphanumeric 

code, with the right-most character 

being a check digit. The check digit 

number is based upon the ISO 7064 

Mod 36/37 check digit algorithm. 

* * * * * 

■ 3. In part 55, subpart B is revised to 

read as follows: 

Subpart B—Chronic Wasting Disease Herd 

Certification Program 

Sec. 

55.21 Administration. 

55.22 Participation and enrollment. 

55.23 Responsibilities of States and 

enrolled herd owners. 

55.24 Herd status. 

55.25 Animal identification. 

Subpart B—Chronic Wasting Disease 

Herd Certification Program 

§ 55.21 Administration. 

The CWD Herd Certification Program 

is a cooperative effort between APHIS, 

State animal health and wildlife 

agencies, and deer, elk, and moose 

owners. APHIS coordinates with these 

State agencies to encourage deer, elk, 

and moose owners to certify their herds 

as low risk for CWD by being in 

continuous compliance with the CWD 

Herd Certification Program standards. 

§ 55.22 Participation and enrollment. 

(a) Participation by States. Any State 

that operates a State program to certify 

the CWD status of deer, elk, or moose 

may request the Administrator to 

designate the State program as an 

Approved State CWD Herd Certification 

Program. The Administrator will 

approve or disapprove a State program 

in accordance with § 55.23(a). In States 

with an Approved State CWD Herd 

Certification Program, program activities 

will be conducted in accordance with 

the guidelines of that program as long as 

the State program meets the minimum 

requirements of this part. A list of 

Approved State CWD Herd Certification 

Programs may be obtained by writing to 

the National Center for Animal Health 

Program, VS, APHIS, 4700 River Road 

Unit 43, Riverdale, MD 20737–1235. 

(b) Participation by owners. Any 

owner of a farmed or captive deer, elk, 

or moose herd may apply to enroll in an 

Approved State CWD Herd Certification 

Program by sending a written request to 

the appropriate State agency. Subject to 

the availability of appropriated funds 

for a Federal CWD Herd Certification 

Program, the owner may apply to the 

APHIS veterinarian in charge if no 

Approved State CWD Herd Certification 

Program exists in the herd’s State. 

APHIS or the State will determine the 

herd’s eligibility, and if needed will 

require the owner to submit more 

details about the herd animals and 

operations. An application for 

participation may be denied if APHIS or 

the State determines that the applicant 

has previously violated State or Federal 

laws or regulations for livestock, and 

that the nature of the violation indicates 

that the applicant may not faithfully 

comply with the requirements of the 

CWD Herd Certification Program. If the 

enrolling herd is a CWD-positive herd or 

CWD-exposed herd, immediately after 

enrollment it must begin complying 

with a herd plan developed in 

accordance with § 55.24. After 

determining that the herd is eligible to 

participate in accordance with this 

paragraph, APHIS or the appropriate 

State agency will send the herd owner 

a notice of enrollment that includes the 

herd’s enrollment date. Inquiries 

regarding which herds are participating 

in the CWD Herd Certification Program 

and their certification should be 

directed to the State representative of 

the relevant State. 

(1) Enrollment date. With the 

exceptions listed in this paragraph, the 

enrollment date for any herd that joins 

the CWD Herd Certification Program 

after August 13, 2012 will be the date 

the herd is approved for participation. 

(i) For herds already participating in 

State CWD programs, the enrollment 

date will be the first day that the herd 

participated in a State program that 

APHIS subsequently determines 

qualifies as an Approved State CWD 

Herd Certification Program in 

accordance with § 55.23(a) of this part. 

(ii) For herds that enroll directly in 

the Federal CWD Herd Certification 

Program, which is allowed only when 

there is no Approved State CWD Herd 

Certification Program in their State and 

which is subject to the availability of 

appropriated funds, the enrollment date 

will be the earlier of: 

(A) The date APHIS approves 

enrollment; or 

(B) If APHIS determines that the herd 

owner has maintained the herd in a 

manner that substantially meets the 

conditions specified in § 55.23(b) for 

herd owners, the first day that the herd 

participated in such a program. 

However, in such cases the enrollment 

date may not be set at a date more than 

3 years prior to the date that APHIS 

approved enrollment of the herd. 

(iii) For new herds that were formed 

from and contain only animals from 

herds enrolled in the CWD Herd 

Certification Program, the enrollment 

date will be the latest enrollment date 

for any source herd for the animals. 

(2) [Reserved] 

(Approved by the Office of Management and 

Budget under control number 0579–0237) 

§ 55.23 Responsibilities of States and 

enrolled herd owners. 

(a) Approval of State programs and 

responsibilities of States. In reviewing a 

State program’s eligibility to be 

designated an Approved State CWD 

Herd Certification Program, the 

Administrator will evaluate a written 

statement from the State that describes 

the State’s CWD control and deer, elk, 

and moose herd certification activities 

and that cites relevant State statutes, 

regulations, and directives pertaining to 

animal health activities and reports and 

publications of the State. In determining 

whether the State program qualifies, the 

Administrator will determine whether 

the State: 

(1) Has the authority, based on State 

law or regulation, to restrict the 

intrastate movement of all CWDpositive, CWD-suspect, and CWDexposed animals. 

(2) Has the authority, based on State 

law or regulation, to require the prompt 

reporting of any animal suspected of 

having CWD and test results for any 

animals tested for CWD to State or 

Federal animal health authorities. 

(3) Has, in cooperation with APHIS 

personnel, drafted and signed a 

memorandum of understanding with 

APHIS that delineates the respective 

roles of the State and APHIS in CWD 

Herd Certification Program 

implementation. 

(4) Has placed all known CWDpositive, CWD-exposed, and CWDsuspect animals and herds under 

movement restrictions, with movement 


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of animals from them only for 

destruction or under permit. 

(5) Has effectively implemented 

policies to: 

(i) Promptly investigate all animals 

reported as CWD-suspect animals; 

(ii) Designate herds as CWD-positive, 

CWD-exposed, or CWD-suspect and 

promptly restrict movement of animals 

from the herd after an APHIS employee 

or State representative determines that 

the herd contains or has contained a 

CWD-positive animal; 

(iii) Remove herd movement 

restrictions only after completion of a 

herd plan agreed upon by the State 

representative, APHIS, and the owner; 

(iv) Conduct an epidemiologic 

investigation of CWD-positive, CWDexposed, and CWD-suspect herds that 

includes the designation of suspect and 

exposed animals and that identifies 

animals to be traced; 

(v) Conduct tracebacks of CWDpositive animals and traceouts of CWDexposed animals and report any out-ofState traces to the appropriate State 

promptly after receipt of notification of 

a CWD-positive animal; and 

(vi) Conduct tracebacks based on 

slaughter or other sampling promptly 

after receipt of notification of a CWDpositive animal at slaughter. 

(6) Effectively monitors and enforces 

State quarantines and State reporting 

laws and regulations for CWD. 

(7) Has designated at least one State 

animal health official, or has worked 

with APHIS to designate an APHIS 

official, to coordinate CWD Herd 

Certification Program activities in the 

State. 

(8) Has programs to educate those 

engaged in the interstate movement of 

deer, elk, and moose regarding the 

identification and recordkeeping 

requirements of this part. 

(9) Requires, based on State law or 

regulation, and effectively enforces 

identification of all animals in herds 

participating in the CWD Herd 

Certification Program; 

(10) Maintains in the CWD National 

Database administered by APHIS, or in 

a State database approved by the 

Administrator as compatible with the 

CWD National Database, the State’s: 

(i) Premises information and assigned 

premises numbers; 

(ii) Individual animal information on 

all deer, elk, and moose in herds 

participating in the CWD Herd 

Certification Program in the State; 

(iii) Individual animal information on 

all out-of-State deer, elk, and moose to 

be traced; and 

(iv) Accurate herd status data. 

(11) Requires that tissues from all 

CWD-exposed or CWD-suspect animals 

that die or are depopulated or otherwise 

killed be submitted to a laboratory 

authorized by the Administrator to 

conduct official CWD tests and requires 

appropriate disposal of the carcasses of 

CWD-positive, CWD-exposed, and 

CWD-suspect animals. 

(b) Responsibilities of enrolled herd 

owners. Herd owners who enroll in the 

CWD Herd Certification Program agree 

to maintain their herds in accordance 

with the following conditions: 

(1) Each animal in the herd must be 

identified using means of animal 

identification specified in § 55.25. All 

animals in an enrolled herd must be 

identified before reaching 12 months of 

age. In addition, all animals of any age 

in an enrolled herd must be identified 

before being moved from the herd 

premises. In addition, all animals in an 

enrolled herd must be identified before 

the inventory required under paragraph 

(b)(4) of this section, and animals found 

to be in violation of this requirement 

during the inventory must be identified 

during or after the inventory on a 

schedule specified by the APHIS 

employee or State representative 

conducting the inventory; 

(2) The herd premises must have 

perimeter fencing adequate to prevent 

ingress or egress of cervids. This fencing 

must also comply with any applicable 

State regulations; 

(3) The owner must immediately 

report to an APHIS employee or State 

representative all animals that escape or 

disappear, and all deaths (including 

animals killed on premises maintained 

for hunting and animals sent to 

slaughter) of deer, elk, and moose in the 

herd aged 12 months or older; Except 

that, APHIS employees or State 

representatives may approve reporting 

schedules other than immediate 

notification when herd conditions 

warrant it in the opinion of both APHIS 

and the State. The report must include 

the identification numbers of the 

animals involved and the estimated 

time and date of the death, escape, or 

disappearance. For animals that die 

(including animals killed on premises 

maintained for hunting and animals 

sent to slaughter), the owner must 

inform an APHIS or State representative 

and must make the carcasses of the 

animals available for tissue sampling 

and testing in accordance with 

instructions from the APHIS or State 

representative. In cases where animals 

escape or disappear and thus are not 

available for tissue sampling and 

testing, or when the owner provides 

samples that are of such poor quality 

that they cannot be tested for CWD, an 

APHIS representative will investigate 

whether the unavailability of animals or 

usable samples for testing constitutes a 

failure to comply with program 

requirements and will affect the herd’s 

status in the CWD Herd Certification 

Program; 

(4) The owner must maintain herd 

records that include a complete 

inventory of animals that states the 

species, age, and sex of each animal, the 

date of acquisition and source of each 

animal that was not born into the herd, 

the date of disposal and destination of 

any animal removed from the herd, and 

all individual identification numbers 

(from tags, tattoos, electronic implants, 

etc.) associated with each animal. Upon 

request by an APHIS employee or State 

representative, the owner must allow 

either of these officials or a designated 

accredited veterinarian access to the 

premises and herd to conduct an 

inventory. The owner will be 

responsible for assembling, handling, 

and restraining the animals and for all 

costs incurred to present the animals for 

inspection. The APHIS employee or 

State representative may order either an 

inventory that consists of review of herd 

records with visual examination of an 

enclosed group of animals, or a 

complete physical herd inventory with 

verification to reconcile all animals and 

identifications with the records 

maintained by the owner. In the latter 

case, the owner must present the entire 

herd for inspection under conditions 

where the APHIS employee, State 

representative, or accredited 

veterinarian can safely read all 

identification on the animals. During 

inventories, the owner must cooperate 

with the inspector to resolve any 

discrepancies to the satisfaction of the 

person performing the inventory. 

Inventory of a herd will be conducted 

no more frequently than once per year, 

unless an APHIS employee, State 

representative, or accredited 

veterinarian determines that more 

frequent inventories are needed based 

on indications that the herd may not be 

in compliance with CWD Herd 

Certification Program requirements. A 

complete physical herd inventory must 

be performed on a herd in accordance 

with this paragraph at the time a herd 

is enrolled in the CWD Herd 

Certification Program; Except that, 

APHIS may accept a complete physical 

herd inventory performed by an APHIS 

employee, State representative, or 

accredited veterinarian not more than 1 

year before the herd’s date of enrollment 

in the CWD Herd Certification Program 

as fulfilling the requirement for an 

initial inventory. In addition, a 

complete physical herd inventory must 

be performed for all herds enrolled in 


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the CWD Herd Certification Program no 

more than 3 years after the last complete 

physical herd inventory for the herd; 

(5) If an owner wishes to maintain 

separate herds, he or she must maintain 

separate herd inventories, records, 

working facilities, water sources, 

equipment, and land use. There must be 

a buffer zone of at least 30 feet between 

the perimeter fencing around separate 

herds, and no commingling of animals 

may occur. Movement of animals 

between herds must be recorded as if 

they were separately owned herds; 

(6) New animals may be introduced 

into the herd only from other herds 

enrolled in the CWD Herd Certification 

Program. If animals are received from an 

enrolled herd with a lower program 

status, the receiving herd will revert to 

that lower program status. If animals are 

obtained from a herd not participating 

in the program, then the receiving herd 

will be required to start over in the 

program. 

(Approved by the Office of Management and 

Budget under control number 0579–0237) 

§ 55.24 Herd status. 

(a) Initial and subsequent status. 

When a herd is first enrolled in the 

CWD Herd Certification Program, it will 

be placed in First Year status; except 

that, if the herd is composed solely of 

animals obtained from herds already 

enrolled in the Program, the newly 

enrolled herd will have the same status 

as the lowest status of any herd that 

provided animals for the new herd. If 

the herd continues to meet the 

requirements of the CWD Herd 

Certification Program, each year, on the 

anniversary of the enrollment date the 

herd status will be upgraded by 1 year; 

i.e., Second Year status, Third Year 

status, Fourth Year status, and Fifth 

Year status. One year from the date a 

herd is placed in Fifth Year status, the 

herd status will be changed to Certified, 

and the herd will remain in Certified 

status as long as it is enrolled in the 

program, provided its status is not lost 

or suspended in accordance with this 

section. 

(b) Loss or suspension of herd status. 

(1) If a herd is designated a CWDpositive herd or a CWD-exposed herd, it 

will immediately lose its program status 

and may only reenroll after entering into 

a herd plan. 

(2) If a herd is designated a CWDsuspect herd, a trace back herd, or a 

trace forward herd, it will immediately 

be placed in Suspended status pending 

an epidemiologic investigation by 

APHIS or a State animal health agency. 

If the epidemiologic investigation 

determines that the herd was not 

commingled with a CWD-positive 

animal, the herd will be reinstated to its 

former program status, and the time 

spent in Suspended status will count 

toward its promotion to the next herd 

status level. 

(i) If the epidemiologic investigation 

determines that the herd was 

commingled with a CWD-positive 

animal, the herd will lose its program 

status and will be designated a CWDexposed herd. 

(ii) If the epidemiological 

investigation is unable to make a 

determination regarding the exposure of 

the herd, because the necessary animal 

or animals are no longer available for 

testing (i.e., a trace animal from a 

known positive herd died and was not 

tested) or for other reasons, the herd 

status will continue as Suspended 

unless and until a herd plan is 

developed for the herd. If a herd plan 

is developed and implemented, the herd 

will be reinstated to its former program 

status, and the time spent in Suspended 

status will count toward its promotion 

to the next herd status level; Except 

that, if the epidemiological investigation 

finds that the owner of the herd has not 

fully complied with program 

requirements for animal identification, 

animal testing, and recordkeeping, the 

herd will be reinstated into the CWD 

Herd Certification Program at the First 

Year status level, with a new enrollment 

date set at the date the herd entered into 

Suspended status. Any herd reinstated 

after being placed in Suspended status 

must then comply with the 

requirements of the herd plan as well as 

the requirements of the CWD Herd 

Certification Program. The herd plan 

will require testing of all animals that 

die in the herd for any reason, 

regardless of the age of the animal, may 

require movement restrictions for 

animals in the herd based on 

epidemiologic evidence regarding the 

risk posed by the animals in question, 

and may include other requirements 

found necessary to control the risk of 

spreading CWD. 

(3) If an APHIS or State representative 

determines that animals from a herd 

enrolled in the program have 

commingled with animals from a herd 

with a lower program status, the herd 

with the higher program status will be 

reduced to the status of the herd with 

which its animals commingled. 

(c) Cancellation of enrollment by 

Administrator. The Administrator may 

cancel the enrollment of an enrolled 

herd by giving written notice to the herd 

owner. In the event of such cancellation, 

any herd enrolled in the CWD Herd 

Certification Program by that herd 

owner may not reach Certified status 

until 5 years after the herd owner’s new 

application for enrollment is approved 

by APHIS, regardless of the status of the 

animals of which the herd is composed. 

The Administrator may cancel 

enrollment after determining that the 

herd owner failed to comply with any 

requirements of this subpart. Before 

enrollment is canceled, an APHIS 

representative will inform the herd 

owner of the reasons for the proposed 

cancellation. 

(1) Herd owners may appeal 

designation of an animal as CWDpositive, cancellation of enrollment of a 

herd, or loss or suspension of herd 

status by writing to the Administrator 

within 10 days after being informed of 

the reasons for the action. The appeal 

must include all of the facts and reasons 

upon which the herd owner relies to 

show that the reasons for the action are 

incorrect or do not support the action. 

Specifically, to appeal designation of an 

animal as CWD-positive, the owner may 

present as evidence the results of a DNA 

test requested and paid for by the owner 

to determine whether previous official 

CWD test results were correctly 

associated with an animal that belonged 

to the owner. If the owner intends to 

present such test results as evidence, he 

or she shall request the tests and state 

this in the written notice sent to the 

Administrator. In such cases the 

Administrator may postpone a decision 

on the appeal for a reasonable period 

pending receipt of such test results. To 

this end, laboratories approved under 

§ 55.8 are authorized to conduct DNA 

tests to compare tissue samples tested 

for CWD to samples from tissues that 

were collected at the same time from the 

same animal and are attached to an 

official identification device. Such DNA 

tests are available only if the animal 

owner arranged to submit animal tissue 

attached to an official identification 

device along with the other tissues that 

were collected for the official CWD test. 

The Administrator will grant or deny 

the appeal in writing as promptly as 

circumstances permit, stating the reason 

for his or her decision. If the 

Administrator grants an appeal of the 

status of a CWD-positive animal, the 

animal shall be redesignated as CWDsuspect pending further investigation to 

establish the final status of the animal 

and its herd. If there is a conflict as to 

any material fact, a hearing will be held 

to resolve the conflict. Rules of practice 

concerning the hearing will be adopted 

by the Administrator. 

(2) [Reserved] 

(d) Herd status of animals added to 

herds. A herd may add animals from 

herds with the same or a higher herd 

status in the CWD Herd Certification 


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5Note that in addition to this requirement, § 81.3 

of this chapter restricts the interstate movement of 

farmed and captive deer, elk, and moose based on 

their status in the CWD Herd Certification Program. 

Program with no negative impact on the 

certification status of the receiving 

herd.5 If animals are acquired from a 

herd with a lower herd status, the 

receiving herd reverts to the program 

status of the sending herd. If a herd 

participating in the CWD Herd 

Certification Program acquires animals 

from a nonparticipating herd, the 

receiving herd reverts to First Year 

status with a new enrollment date of the 

date of acquisition of the animal. 

(Approved by the Office of Management and 

Budget under control number 0579–0237.) 

§ 55.25 Animal identification. 

Each animal required to be identified 

by this subpart must have at least two 

forms of animal identification attached 

to the animal. One of the animal 

identifications must be official animal 

identification as defined in this part, 

with a nationally unique animal 

identification number that is linked to 

that animal in the CWD National 

Database or in an approved State 

database. The second animal 

identification must be unique for the 

individual animal within the herd and 

also must be linked to that animal and 

herd in the CWD National Database or 

in an approved State database. The 

means of animal identification must be 

approved for this use by APHIS, and 

must be an electronic implant, flank 

tattoo, ear tattoo, tamper-resistant ear 

tag, or other device approved by APHIS. 

(Approved by the Office of Management and 

Budget under control number 0579–0237) 

■ 4. Part 81 is revised to read as follows: 

PART 81—CHRONIC WASTING 

DISEASE IN DEER, ELK, AND MOOSE 

Sec. 

81.1 Definitions. 

81.2 Identification of deer, elk, and moose 

in interstate commerce. 

81.3 General restrictions. 

81.4 Issuance of certificates. 

81.5 Movement of deer, elk, or moose 

through a State to another State. 

81.6 Federal preemption of State and local 

laws and regulations with respect to 

CWD. 

Authority: 7 U.S.C. 8301–8317; 7 CFR 

2.22, 2.80, and 371.4. 

§ 81.1 Definitions. 

These definitions are applicable to 

this part: 

Accredited veterinarian. A 

veterinarian approved by the 

Administrator in accordance with part 

161 of this chapter to perform functions 

specified in subchapters B, C, and D of 

this chapter. 

Administrator. The Administrator, 

Animal and Plant Health Inspection 

Service, or any person authorized to act 

for the Administrator. 

Animal. Any farmed or captive deer, 

elk, or moose. 

Animal and Plant Health Inspection 

Service (APHIS). The Animal and Plant 

Health Inspection Service of the United 

States Department of Agriculture. 

Animal identification. A device or 

means of animal identification approved 

for use under this part by APHIS. 

Examples of animal identification 

devices that APHIS has approved are 

listed in § 55.25 of this chapter. 

Animal identification number (AIN). 

A numbering system for the official 

identification of individual animals in 

the United States. The AIN contains 15 

digits, with the first 3 being the country 

code (840 for the United States), the 

alpha characters USA, or the numeric 

code assigned to the manufacturer of the 

identification device by the 

International Committee on Animal 

Recording. 

APHIS employee. Any individual 

employed by the Animal and Plant 

Health Inspection Service who is 

authorized by the Administrator to do 

any work or perform any duty in 

connection with the control and 

eradication of disease. 

Cervid. All members of the family 

Cervidae and hybrids, including deer, 

elk, moose, caribou, reindeer, and 

related species. For the purposes of this 

part, the term ‘‘cervid’’ refers 

specifically to cervids susceptible to 

CWD. These are animals in the genera 

Odocoileus, Cervus, and Alces and their 

hybrids, i.e., deer, elk, and moose. 

Chronic wasting disease (CWD). A 

transmissible spongiform 

encephalopathy of cervids. Clinical 

signs in affected animals include, but 

are not limited to, loss of body 

condition, behavioral changes, excessive 

salivation, increased drinking and 

urination, depression, and eventual 

death. 

CWD Herd Certification Program. The 

Chronic Wasting Disease Herd 

Certification Program established in part 

55 of this chapter. 

Deer, elk, and moose. All animals in 

the genera Odocoileus, Cervus, and 

Alces and their hybrids. 

Farmed or captive. Privately or 

publicly maintained or held for 

economic or other purposes within a 

perimeter fence or confined area, or 

captured from a wild population for 

interstate movement and release. 

National Uniform Eartagging System. 

A numbering system for the official 

identification of individual animals in 

the United States providing a nationally 

unique identification number for each 

animal. The National Uniform 

Eartagging System employs an eight- or 

nine-character alphanumeric format, 

consisting of a two-number State or 

territory code, followed by two or three 

letters and four additional numbers. 

Official APHIS disease control programs 

may specify which format to employ. 

Official animal identification. A 

device or means of animal identification 

approved for use under this part by 

APHIS to uniquely identify individual 

animals. Examples of approved official 

animal identification devices are listed 

in § 55.25 of this chapter. The official 

animal identification must include a 

nationally unique animal identification 

number that adheres to one of the 

following numbering systems: 

(1) National Uniform Eartagging 

System. The CWD program allows the 

use of either the eight-character or ninecharacter format for cervids. 

(2) Animal identification number 

(AIN). 

(3) Premises-based number system. 

The premises-based number system 

combines an official premises 

identification number (PIN), as defined 

in this section, with a producer’s 

livestock production numbering system 

to provide a unique identification 

number. The PIN and the production 

number must both appear on the official 

tag. 

(4) Any other numbering system 

approved by the Administrator for the 

identification of animals in commerce. 

Premises identification number (PIN). 

A nationally unique number assigned by 

a State, Tribal, and/or Federal animal 

health authority to a premises that is, in 

the judgment of the State, Tribal, and/ 

or Federal animal health authority, a 

geographically distinct location from 

other premises. The premises 

identification number is associated with 

an address, geospatial coordinates, and/ 

or location descriptors which provide a 

verifiably unique location. The premises 

identification number may be used in 

conjunction with a producer’s own 

livestock production numbering system 

to provide a unique identification 

number for an animal. It may also be 

used as a component of a group/lot 

identification number. The premises 

identification number may consist of: 

(1) The State’s two-letter postal 

abbreviation followed by the premises’ 

assigned number; or 

(2) A seven-character alphanumeric 

code, with the right-most character 

being a check digit. The check digit 

number is based upon the ISO 7064 

Mod 36/37 check digit algorithm. 


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§ 81.2 Identification of deer, elk, and 

moose in interstate commerce. 

Each animal required to be identified 

by this part must have at least two forms 

of animal identification attached to the 

animal. The means of animal 

identification must be approved for this 

use by APHIS, and must be an 

electronic implant, flank tattoo, ear 

tattoo, tamper-resistant ear tag, or other 

device approved by APHIS. One of the 

animal identifications must be an 

official animal identification as defined 

in this part, with a nationally unique 

animal identification number that is 

linked to that animal in the CWD 

National Database or in an approved 

State database. The second animal 

identification must be unique for the 

individual animal within the herd and 

also must be linked to that animal and 

herd in the CWD National Database or 

in an approved State database. 

(Approved by the Office of Management and 

Budget under control number 0579–0237) 

§ 81.3 General restrictions. 

No farmed or captive deer, elk, or 

moose may be moved interstate unless 

it meets the requirements of this section. 

(a) Animals in the CWD Herd 

Certification Program. The captive deer, 

elk, or moose is: 

(1) Enrolled in the CWD Herd 

Certification Program and the herd has 

achieved Certified status in accordance 

with § 55.24 of this chapter; and 

(2) Is accompanied by a certificate 

issued in accordance with § 81.4 that 

identifies its herd of origin and that 

states that the animal’s herd has 

achieved Certified status and that the 

animal does not show clinical signs 

associated with CWD. 

(b) Animals captured for interstate 

movement and release. If the captive 

deer, elk, or moose was captured from 

a wild population for interstate 

movement and release, each animal 

must have two forms of animal 

identification, one of which is official 

animal identification, and the certificate 

issued in accordance with § 81.4 that 

accompanies the animal must state that 

the source population has been 

documented 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. 

(c) Animals moved to slaughter. The 

farmed or captive deer, elk, or moose 

must be moved directly to a recognized 

slaughtering establishment for slaughter, 

must have two forms of animal 

identification, one of which is official 

animal identification, and must be 

accompanied by a certificate issued in 

accordance with § 81.4. 

(d) Research animal movements and 

permits. A research animal permit is 

required for the interstate movement of 

cervids for research purposes. The 

permit will specify any special 

conditions of the movement determined 

by the Administrator to be necessary to 

prevent the dissemination of CWD. The 

Administrator may, at his or her 

discretion, issue the permit if he or she 

determines that the destination facility 

has adequate biosecurity and that the 

movement authorized will not result in 

the interstate dissemination of CWD. 

(1) To apply for a research animal 

permit, contact an APHIS employee or 

State representative and provide the 

following information: 

(i) The name and address of the 

person to whom the special permit is 

issued, the address at which the 

research cervids to be moved interstate 

are being held, and the name and 

address of the person receiving the 

cervids to be moved interstate; 

(ii) The number and type of cervids to 

be moved interstate; 

(iii) The reason for the interstate 

movement; 

(iv) Any safeguards in place to 

prevent transmission of CWD during 

movement or at the receiving location; 

and 

(v) The date on which movement will 

occur. 

(2) A copy of the research animal 

permit must accompany the cervids 

moved, and copies must be submitted so 

that a copy is received by the State 

animal health official and the 

veterinarian in charge for the State of 

destination at least 72 hours prior to the 

arrival of the cervids at the destination 

listed on the research animal permit. 

(e) Interstate movements approved by 

the Administrator. Notwithstanding any 

other provision of this part, interstate 

movement of farmed or captive deer, 

elk, and moose may be allowed on a 

case-by-case basis when the 

Administrator determines that adequate 

survey and mitigation procedures are in 

place to prevent dissemination of CWD 

and issues a permit for the movement. 

§ 81.4 Issuance of certificates. 

(a) Information required on 

certificates. A certificate must show any 

official animal identification numbers of 

each animal to be moved. A certificate 

must also show the number of animals 

covered by the certificate; the purpose 

for which the animals are to be moved; 

the points of origin and destination; the 

consignor; and the consignee. The 

certificate must include a statement by 

the issuing accredited veterinarian, 

State veterinarian, or Federal 

veterinarian that the animals were not 

exhibiting clinical signs associated with 

CWD at the time of examination. The 

certificate must also include a statement 

that the animals are from a herd that has 

achieved Certified status in the CWD 

Herd Certification Program, and must 

provide the herd’s program status, with 

the following exceptions: 

(1) Certificates issued for animals 

captured from a wild population for 

interstate movement and release do not 

need to state that the animals are from 

a herd that has achieved Certified status 

in the CWD Herd Certification Program 

but must include the statement required 

in § 81.3(b); and 

(2) Certificates issued for animals 

moved directly to slaughter do not need 

to state that the animals are from a herd 

that has achieved Certified status in the 

CWD Herd Certification Program and 

must state that an APHIS employee or 

State representative has been notified in 

advance of the date the animals are 

being moved to slaughter. 

(b) Animal identification documents 

attached to certificates. As an 

alternative to typing or writing 

individual animal identification on a 

certificate, another document may be 

used to provide this information, but 

only under the following conditions: 

(1) The document must be a State 

form or APHIS form that requires 

individual identification of animals; 

(2) A legible copy of the document 

must be stapled to the original and each 

copy of the certificate; 

(3) Each copy of the document must 

identify each animal to be moved with 

the certificate, but any information 

pertaining to other animals, and any 

unused space on the document for 

recording animal identification, must be 

crossed out in ink; and 

(4) The following information must be 

typed or written in ink in the 

identification column on the original 

and each copy of the certificate and 

must be circled or boxed, also in ink, so 

that no additional information can be 

added: 

(i) The name of the document; and 

(ii) Either the serial number on the 

document or, if the document is not 

imprinted with a serial number, both 

the name of the person who issued the 

document and the date the document 

was issued. 

(Approved by the Office of Management and 

Budget under control number 0579–0237) 

§ 81.5 Movement of deer, elk, or moose 

through a State to another State. 

Farmed or captive deer, elk, or moose 

may be moved through a State or 


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locality whose laws or regulations on 

the movement of those animals are more 

restrictive than this part to another State 

under the following conditions: 

(a) The farmed or captive deer, elk, or 

moose must be eligible to move 

interstate under § 81.3. 

(b) 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. 

(c) Except in emergencies, the farmed 

or captive deer, elk, or moose must not 

be unloaded until their arrival at their 

destination. 

§ 81.6 Federal preemption of State and 

local laws and regulations with respect to 

CWD. 

State and local laws and regulations 

on farmed or captive deer, elk, or moose 

with respect to CWD that are more 

restrictive than the regulations in this 

part are not preempted by this part, 

except as described in § 81.5. 

Done in Washington, DC, this May 31, 

2012. 

Edward Avalos, 

Under Secretary for Marketing and Regulatory 

Programs. 

[FR Doc. 2012–14186 Filed 6–12–12; 8:45 am] 

BILLING CODE 3410–34–P 


erowe on DSK2VPTVN1PROD with RULES3