```

[Federal Register: September 17, 2010 (Volume 75, Number 180)]
[Proposed Rules]               
[Page 56914-56916]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se10-18]                         

-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 91

[Docket No. APHIS-2009-0078]
RIN 0579-AD25

 
Removal of the List of Ports of Embarkation and Export Inspection 
Facilities from the Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We are proposing to amend the live animal export regulations 
by removing the list of designated ports of embarkation and their 
associated export inspection facilities. As a result of this 
rulemaking, those ports and facilities would henceforth be listed on 
the Internet rather than in the regulations, thus enabling us to amend 
the list, when necessary, in a timelier manner than we can now and 
allowing us greater flexibility in regulating animal exports.

DATES: We will consider all comments that we receive on or before 
November 16, 2010.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2009-0078) to submit or view comments 
and to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2009-0078, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2009-0078.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room 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) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at (http://www.aphis.usda.gov).

FOR FURTHER INFORMATION CONTACT: Dr. Courtney Bronner Williams, Senior 
Staff Veterinarian, Technical Trade Services, National Center for 
Import and Export, VS, APHIS, 4700 River Road Unit 39, Riverdale, MD; 
20737-1231; (301) 734-8364.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 9 CFR part 91, ``Inspection and Handling of 
Livestock for Exportation'' (referred to below as the regulations), 
prescribe conditions for exporting animals from the United States. The 
regulations state, among other things, that all animals, except animals 
exported by land to Canada or Mexico, must be exported through 
designated ports of embarkation, unless the exporter can show that the 
animals would suffer undue hardship if they were required to be moved 
to a designated port of embarkation.
    Paragraph (a) of Sec.  91.14 lists ports that have been designated 
by the Animal and Plant Health Inspection Service (APHIS) as having met 
the requirements for use as ports of embarkation. To receive such a 
designation from APHIS, a port must have an export inspection facility 
available for the inspection, holding, feeding, and watering of animals 
prior to exportation. Approved export inspection facilities, along with 
their contact information, are also listed in Sec.  91.14(a). Under the 
regulations, export inspection facilities must meet the standards 
contained in Sec.  91.14(c) concerning physical construction 
requirements, facility size, inspection implements (e.g., pens and 
animal restraining devices), cleaning and disinfection, feed and water, 
access by inspectors, animal handling arrangements, testing and 
treatment of animals, facility location, disposal of animal wastes, 
lighting, office and restroom facilities, and walkways.
    Because the designated ports of embarkation and associated export 
inspection facilities are now listed in the regulations, the list can 
only be amended to add or remove ports or export inspection facilities 
or to update contact information by means of rulemaking. In order to 
allow for more timely changes, we are proposing to remove this list 
from the regulations. In its place, we would add a new paragraph (a) 
stating that all ports that have export inspection facilities that an 
APHIS veterinarian has determined satisfy the requirements of Sec.  
91.14(c) would be designated as ports of embarkation. The proposed 
paragraph would further state that the list of designated ports and 
inspection facilities can be obtained from an APHIS Veterinary Services 
area office or viewed on the Internet on the APHIS Web site. Finally, 
proposed paragraph (a) would provide, as does the introductory text of 
the existing paragraph (a), that all animals, except animals being 
exported by land to Mexico or Canada, must be exported through the 
listed ports or through other ports designated in special cases by the 
Administrator, as provided in Sec.  91.14(b).
    We are also proposing some changes to Sec.  91.14(d), which 
pertains to approval and denial, revocation, or suspension of approval 
of export inspection facilities. Currently, the paragraph states that 
approval of an export inspection facility will be denied or revoked if 
the facility fails to meet the standards contained in Sec.  91.14(c). 
The operator of the facility is notified in writing if approval is 
denied or revoked, in the latter case, at least 60 days prior to the 
date of the proposed revocation. The written notice details the 
deficiencies of the facility, and the operator is given an opportunity 
to respond. Pending a final determination, approval of any facility may 
be denied or suspended by the Administrator when he has reason to 
believe that the facility does not meet the standards set forth in the 
regulations.
    The paragraph, as currently written, is somewhat ambiguous 
regarding the circumstances that may trigger a revocation of approval. 
In order to clarify the regulations and ensure that standards are being 
maintained at ports

[[Page 56915]]

and facilities covered under these regulations, we are proposing to 
amend paragraph (d) to require that designated ports of embarkation and 
export facilities be reevaluated annually for compliance with Sec.  
91.14(c) by means of an APHIS inspection.
    We would also remove the provisions pertaining to suspension and/or 
proposed revocation of approval, including the requirement that we 
notify the operator of the facility 60 days prior to the latter. For 
purposes of enforcement, the existing categories of suspension and 
revocation are essentially the same: In either case, the port or 
facility loses its eligibility for use as a designated port of 
embarkation. Moreover, there is no distinction between the requirements 
for reinstatement of a facility that has had its approval suspended and 
one that has had its approval revoked. In both the former case and the 
latter, the facility is reinstated when it can demonstrate that it 
meets the requirements of Sec.  91.14(c). The elimination of the 
category of suspension, therefore, would not change the way the 
regulations are enforced but would simplify them. Under our proposed 
paragraph (d), if a facility were to fail an annual compliance 
inspection, it would be removed immediately from the list of designated 
facilities. Proposed paragraph (d) would also clarify the procedure for 
reinstatement by indicating that operators of facilities that fail 
either an initial inspection or an annual compliance inspection would 
have the opportunity to request another inspection after remedying the 
deficiencies listed in the written notice from APHIS. The existing 
regulations do not address the issue of reinstatement directly.
    Finally, we would make minor editorial changes to Sec. Sec.  
91.14(b) and 91.15(a), the current text of which contains references to 
the list of ports in current Sec.  91.14(a).
    By eliminating the need for rulemaking each time the list of 
designated ports of embarkation and associated export inspection 
facilities needs to be changed, this proposed rule would allow 
revisions to that list to be made much more quickly than they can at 
present. Our ability to revise the list in a timely manner will make 
the process of regulating animal exports more flexible and efficient.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866 and, therefore, has not been 
reviewed by the Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT 
or on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov).
    This proposed rule would amend the live animal export regulations 
by removing the list of designated ports of embarkation and their 
associated export inspection facilities. As a result of this 
rulemaking, those ports and facilities would henceforth be listed on 
the Internet rather than in the regulations, allowing us to amend the 
list, when necessary, in a timelier manner than we can now.
    Those entities most likely to be economically affected by the rule 
would be exporters of live animals and domestic livestock producers. 
These entities either sell goods on their own account (import/export 
merchants) or arrange for the sale of goods owned by others (import/
export agents and brokers). Affected entities could include beef cattle 
ranching and farming operations, dairy cattle and milk production 
operations, hog and pig farming operations, sheep and goat farming 
operations, and cattle feedlots.
    The Small Business Administration has established guidelines for 
determining which businesses are to be considered small. Based on the 
most recent data we have regarding annual receipts, it is likely that 
most of the entities that could be affected by this proposed rule are 
small.
    However, this proposal would only amend APHIS' administrative 
process for changing the list of designated embarkation ports and 
associated export inspection facilities. The proposed action would not 
make any changes in the status of any designated embarkation port or 
associated export inspection facility, nor would it alter the technical 
criteria by which designated embarkation ports and associated export 
inspection facilities are added to or removed from this list. We expect 
that this proposed rule will have little effect on U.S. entities other 
than benefits they could derive from timelier changes to the list of 
designated ports of embarkation and associated export inspection 
facilities.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

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 proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This proposed rule contains no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 9 CFR Part 91

    Animal diseases, Animal welfare, Exports, Livestock, Reporting and 
recordkeeping requirements, Transportation.

0
Accordingly, we propose to amend 9 CFR part 91 as follows:

PART 91--INSPECTION AND HANDLING OF LIVESTOCK FOR EXPORTATION

0
1. The authority citation for part 91 continues to read as follows:

    Authority: 7 U.S.C. 8301-8317; 19 U.S.C. 1644a(c); 21 U.S.C. 
136, 136a, and 618; 46 U.S.C. 3901 and 3902; 7 CFR 2.22, 2.80, and 
371.4.

0
2. Section 91.14 is amended by revising paragraphs (a), (b), and (d) to 
read as follows:

Sec.  91.14  Ports of embarkation and export inspection facilities.

    (a) All ports that have export inspection facilities which an APHIS 
veterinarian has determined satisfy the requirements of paragraph (c) 
of this section are hereby designated as ports of embarkation. A list 
of designated ports of embarkation can be viewed on the Internet at 
(http://www.aphis.usda.gov/regulations/vs/iregs/animals/) or obtained 
from a Veterinary Services area office. Information on area offices is 
available at (http://www.aphis.usda.gov/animal_health/area_offices/). 
All animals, except animals being exported

[[Page 56916]]

by land to Mexico or Canada, shall be exported through said ports or 
through ports designated in special cases under paragraph (b) of this 
section.
    (b) In special cases, other ports may be designated as ports of 
embarkation by the Administrator, with the concurrence of the 
Commissioner of the Bureau of Customs and Border Protection, when the 
exporter can show to the satisfaction of the Administrator that the 
animals to be exported would suffer undue hardship if they are required 
to be moved to a port listed as a designated port of embarkation in 
accordance with paragraph (a) of this section. Ports shall be 
designated in special cases as ports of embarkation only if the 
inspection facilities are approved as meeting the requirements of 
paragraph (c) of this section.
* * * * *
    (d) Approval and denial or revocation of approval. Approval of each 
export inspection facility for designation under paragraph (a) of this 
section, and in special cases under paragraph (b) of this section, 
shall be obtained from the Administrator. Approval of an export 
inspection facility under paragraph (a) or (b) will be denied or 
revoked for failure to meet the standards in paragraph (c) of this 
section. Designated ports of embarkation and export facilities shall be 
reevaluated annually, by means of an APHIS site inspection, for 
continued compliance with the standards contained in paragraph (c) of 
this section. If the port or facility fails to pass the annual 
inspection, its designation will be revoked, and it will be removed 
from the list of designated ports and facilities. A written notice of 
any proposed denial or revocation shall be given to the operator of the 
facility, and he will be given an opportunity to present his views 
thereon. Such notice shall list in detail the deficiencies concerned. 
After remedying the deficiencies, an operator may request another 
inspection. Approval of a port of embarkation in connection with the 
designation of an export inspection facility in special cases shall be 
limited to the special case for which the designation was made.
* * * * *

0
3. In Sec.  91.15, paragraph (a) is revised to read as follows:

Sec.  91.15  Inspection of animals for export.

    (a) All animals offered for exportation to any foreign country, 
except by land to Mexico or Canada, shall be inspected within 24 hours 
of embarkation by an APHIS veterinarian at an export inspection 
facility at a port listed as a designated port of embarkation in 
accordance with Sec.  91.14(a), or at a port or inspection facility 
designated by the Administrator in a special case under Sec.  91.14(b).
* * * * *
    Done in Washington, DC, this 13\th\ day of September 2010.

Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2010-23245 Filed 9-16-10: 8:45 am]
BILLING CODE 3410-34-S
```