[Federal Register Volume 74, Number 54 (Monday, March 23, 2009)]
[Rules and Regulations]
[Pages 12055-12058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6252]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 77

[Docket No. APHIS-2008-0124]


Tuberculosis in Cattle and Bison; State and Zone Designations; 
New Mexico

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the bovine tuberculosis regulations to 
establish two separate zones with different tuberculosis risk 
classifications for the State of New Mexico. The entire State of New 
Mexico has been classified as modified accredited advanced; however, 
all its affected herds are located in a small area along the State's 
eastern border. We have determined that New Mexico meets our 
requirements for zone classification. Therefore, we are removing New 
Mexico from the list of modified accredited advanced States, adding an 
area consisting of Curry and Roosevelt Counties, NM, to the list of 
modified accredited advanced zones, and adding the remainder of the 
State to the list of accredited-free zones. This action relieves 
restrictions on the interstate movement of cattle and bison from these 
areas of New Mexico outside of the modified accredited advanced zone in 
two counties.

DATES: This interim rule is effective March 23, 2009. We will consider 
all comments that we receive on or before May 22, 2009.

ADDRESSES: You may submit comments by either of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0124 to submit or view comments and 
to view supporting and related materials available electronically.
    <bullet> Postal Mail/Commercial Delivery: Please send two copies of 
your comment to Docket No. APHIS-2008-0124, 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-2008-0124.
    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. C. William Hench, Senior Staff 
Veterinarian, National Tuberculosis Eradication Program, Veterinary 
Services, APHIS, 2150 Centre Ave., Bldg. B, MSC 3E20, Ft. Collins, CO 
80526; (970) 494-7378.

SUPPLEMENTARY INFORMATION: 

Background

    Bovine tuberculosis is a contagious and infectious granulomatous 
disease caused by the bacterium Mycobacterium bovis. Although commonly 
defined as a chronic debilitating disease, bovine tuberculosis can 
occasionally assume an acute, rapidly progressive course. While any 
body tissue can be affected, lesions are most frequently observed in 
the lymph nodes, lungs, intestines, liver, spleen, pleura, and 
peritoneum. Although cattle are considered to be the true hosts of M. 
bovis, the disease has been reported in several other species of both 
domestic and nondomestic animals, as well as in humans.
    At the beginning of the past century, tuberculosis caused more 
losses of livestock than all other livestock diseases combined. This 
prompted the establishment in the United States of the National 
Cooperative State/Federal

[[Page 12056]]

Bovine Tuberculosis Eradication Program for tuberculosis in livestock.
    In carrying out the national eradication program, the Animal and 
Plant Health Inspection Service (APHIS) issues and enforces 
regulations. The regulations require the testing of cattle and bison 
for tuberculosis, define the Federal tuberculosis status levels for 
States or zones (accredited-free, modified accredited advanced, 
modified accredited, accreditation preparatory, and nonaccredited), 
provide the criteria for attaining and maintaining those status levels, 
and contain testing and movement requirements for cattle and bison 
leaving States or zones of a particular status level. These regulations 
are contained in 9 CFR part 77 (referred to below as the regulations) 
and in the Bovine Tuberculosis Eradication Uniform Methods and Rules, 
1999, which is incorporated by reference into the regulations.

Conditions for Zone Classification

    Under Sec. Sec.  77.3 and 77.4 of the regulations, in order to 
qualify for zone classification by APHIS, a State must meet the 
following requirements:
    1. The State must have adopted and must be enforcing regulations 
that impose restrictions on the intrastate movement of cattle, bison, 
and captive cervids that are substantially the same as those in place 
in part 77 for the interstate movement of those animals.
    2. The designation of part of a State as a zone must otherwise be 
adequate to prevent the interstate spread of tuberculosis.
    3. The zones must be delineated by the animal health authorities in 
the State making the request for zone classification and must be 
approved by the APHIS Administrator.
    4. The request for zone classification must demonstrate that the 
State has the legal and financial resources to implement and enforce a 
tuberculosis eradication program and has in place the infrastructure, 
laws, and regulations to require and ensure that State and Federal 
animal health authorities are notified of tuberculosis cases in 
domestic livestock or outbreaks in wildlife.
    5. The request for zone classification must demonstrate that the 
State maintains, in each intended zone, clinical and epidemiological 
surveillance of animal species at risk of tuberculosis, at a rate that 
allows detection of tuberculosis in the overall population of livestock 
at a 2 percent prevalence rate with 95 percent confidence. The 
designated tuberculosis epidemiologist must review reports of all 
testing for each zone within the State within 30 days of the testing.
    6. The State must enter into a memorandum of understanding with 
APHIS in which the State agrees to adhere to any conditions for zone 
recognition particular to that request.
Request for Zone Classification in New Mexico
    In an interim rule effective and published in the Federal Register 
on September 11, 2008 (73 FR 52775-52777, Docket No. APHIS-2008-0068), 
we amended the bovine tuberculosis regulations by adding New Mexico to 
the list of modified accredited advanced States. Prior to the 
publication of the September 2008 interim rule, portions of Curry and 
Roosevelt Counties, NM, had been classified as a modified accredited 
advanced zone, and the rest of the State of New Mexico was classified 
as accredited-free. We reclassified the entire State of New Mexico as a 
modified accredited advanced State because two affected herds had been 
detected in New Mexico's accredited-free zone since April 2007. Both of 
the affected herds were located in Curry County, outside the modified 
accredited advanced zone, along a portion of New Mexico's eastern 
border with Arizona. No tuberculosis-affected herds were found in the 
remainder of the State. Therefore, we have received from the State of 
New Mexico a request for zone classification for bovine tuberculosis.
    According to the regulations, if bovine tuberculosis is detected in 
a portion of a State, the State may request split-State status via 
partitioning into specific geographic regions or zones with 
differential status designations. With regard to cattle and bison, 
State animal health officials in New Mexico have demonstrated to APHIS 
that New Mexico, excluding Curry and Roosevelt Counties, meets the 
criteria for accredited-free status set forth in the definition of 
accredited-free State or zone in Sec.  77.5 of the regulations.
    Based on our evaluation of New Mexico's request in light of the 
criteria set forth in the regulations, we have determined that New 
Mexico meets the requirements listed above for zone classification and 
that, except for Curry and Roosevelt Counties, New Mexico meets the 
criteria for accredited-free status set forth in the definition of 
accredited-free State or zone in Sec.  77.5. Therefore, we are 
classifying two zones in New Mexico as follows:
    <bullet> The modified accredited advanced zone, which is the 
smaller of the two, consists of the New Mexico counties of Curry and 
Roosevelt.
    <bullet> The accredited-free zone consists of all of the State of 
New Mexico except for Curry and Roosevelt Counties.

Immediate Action

    Immediate action is warranted to relieve restrictions on the 
interstate movement of cattle and bison from the newly classified 
accredited-free zone in New Mexico. Under these circumstances, the 
Administrator has determined that prior notice and opportunity for 
public comment are contrary to the public interest and that there is 
good cause under 5 U.S.C. 553 for making this action effective less 
than 30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). 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.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review under 
Executive Order 12866.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities.
    New Mexico has been listed as a modified accredited advanced State 
for bovine tuberculosis. This interim rule removes New Mexico from the 
list of modified accredited advanced States, adds an area in the 
eastern portion of the State to the list of modified accredited 
advanced zones, and adds the remainder of the State to the list of 
accredited-free zones. Modified accredited advanced status entails 
various restrictions on interstate movement of cattle. Reclassification 
to accredited-free status reduces or removes specific testing 
requirements. The Regulatory Flexibility Act requires agencies to 
evaluate the potential effects of proposed and final rules on small 
businesses, small organizations, and small governmental jurisdictions. 
Section 605 of the Regulatory Flexibility Act allows an agency to 
certify that a rule will not have a significant economic impact on a 
substantial number of small entities. Following is the factual basis 
for such certification in this case.

[[Page 12057]]

Description and Estimate of Small Entities Affected by the Interim Rule

    Entities that will be directly affected by the rule are New Mexico 
beef and dairy farms that engage in interstate movement of certain 
types of cattle. Operations in the accredited-free zone will benefit 
from reduced costs associated with bovine tuberculosis testing.
    The cattle industry plays an important role in New Mexico's 
economy. There were 7,300 cattle and calf operations in New Mexico in 
2008 with a total inventory of 1.53 million head. About 77 percent of 
the State's cattle are located in what will be the accredited-free 
zone.\1\ State-wide cash receipts from cattle and calves and dairy 
products totaled $951 million and $1.4 billion, respectively, in 2007. 
Eight-year average (2000-2007) cash receipts for cattle and calves and 
dairy products were $858 million and $905 million, respectively.\2\
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    \1\ 2007 New Mexico Agricultural Statistics, USDA/National 
Agricultural Statistics Service (NASS), New Mexico Department of 
Agriculture.
    \2\ USDA/Economic Research Service Cash Receipts, by Commodity 
Groups and Selected Commodities, United States and States, 2000-
2007. http://www.ers.usda.gov/Data/farmincome/FinfidmuXls.htm.
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    The Small Business Administration (SBA) has established guidelines 
for determining which businesses are considered small. According to the 
SBA's size standards for beef cattle ranching and farming (North 
American Industry Classification System [NAICS] 112111) and for dairy 
cattle and milk production (NAICS 112120), operations with not more 
than $750,000 in annual sales are considered small entities. The vast 
majority of beef operations in New Mexico are considered small, while 
most dairy operations are not. In 2007, more than 97 percent of cattle 
and calf farms generated less than $500,000 in cash receipts, and less 
than 1 percent generated $1 million or more. Only about 27 percent of 
dairy farms generated less than $500,000 in cash receipts and about 71 
percent generated $1 million or more.\3\ The composition of New 
Mexico's cattle inventory is shown in table 1.
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    \3\ 2007 Census of Agriculture. NASS, USDA.

                              Table 1--New Mexico Cattle Inventory, January 1, 2008
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                                                                                                      Percentage
                     Type                                                                  Number      of total
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Beef cows.....................................  ......................................      460,000         30.1
Milk cows.....................................  ......................................      340,000         22.2
Heifers.......................................  ......................................  ...........  ...........
                                                Beef cow replacements.................       90,000          5.9
                                                Milk cow replacements.................      130,000          8.5
                                                Other heifers.........................      100,000          6.5
                                                                                       -------------------------
Total heifers.................................  ......................................      320,000         20.9
Steers........................................  ......................................      170,000         11.1
Bulls.........................................  ......................................       40,000          2.6
Calves........................................  ......................................      200,000         13.1
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    Total.....................................  ......................................    1,530,000  ...........
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Source: NASS, USDA.

Expected Effects of the Rule

    New Mexico has been listed as a modified accredited advanced State. 
This rule reclassifies nearly all of the State as accredited-free. The 
reclassification of an area to accredited-free status from modified 
accredited advanced status removes certain interstate movement 
restrictions for cattle capable of breeding. These restrictions include 
a negative bovine tuberculosis test within 60 days of the interstate 
movement of sexually intact cattle and bison from a herd without 
accredited status. This testing requirement will no longer apply to 
cattle moving out of the accredited-free zone.
    Cattle herd owners in the accredited-free zone will see a reduction 
in pre-movement bovine tuberculosis testing requirements as a result of 
this rule and will therefore benefit from reduced costs associated with 
that bovine tuberculosis testing. The majority of cattle herds in New 
Mexico are located in areas that are reclassified as accredited-free in 
this rule and are therefore likely to benefit.
    As a result of this rule, breeding cattle moving interstate from 
non-accredited herds in the accredited-free zone no longer require a 
negative bovine tuberculosis test within 60 days of movement. According 
to the State of New Mexico, 84,398 cattle were moved out of New Mexico 
for breeding purposes in 2008.\4\ Just under half (42,081) of these 
animals were moved interstate from the area that is reclassified to 
accredited-free status in this rule. Bovine tuberculosis testing, 
including veterinary fees, costs about $10 to $15 per head. Based on 
these costs per animal, we expect annual cost savings associated with 
reduced testing of breeding cattle moving out of the State to total 
between $420,810 and $631,215. The more a herd owner in the accredited-
free zone engages in the interstate movement of breeding cattle, the 
greater will be savings associated with the reduction in movement 
restrictions.
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    \4\ New Mexico Livestock Board.
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    A large number of the cattle herds in the State will see a 
reduction in pre-movement bovine tuberculosis testing requirements as a 
result of this rule, and will therefore benefit from reduced costs 
associated with that bovine tuberculosis testing. However, bovine 
tuberculosis testing costs are small when compared to the value of the 
cattle tested, and the expected savings therefore are also relatively 
small. On January 1, 2007, beef cattle in New Mexico had an average per 
animal value of $1,060.\5\ The average value of dairy cattle is 
considerably higher, given the value of milk produced. The savings in 
bovine tuberculosis testing costs represent no more than about 1.4 
percent of the average per-head value of beef cattle in New Mexico 
($15/$1,060) and an even smaller percentage of the average value of 
dairy cattle in the State. Thus, while herd owners engaged in 
interstate movement of feeding and breeding

[[Page 12058]]

cattle will benefit from time savings and reduced costs associated with 
bovine tuberculosis testing, however, the savings will be relatively 
small.
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    \5\ Meat Animals Production, Distribution and Income 2007 
Summary. April 2008. Agricultural Statistics Board. NASS, USDA.
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    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 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 rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are in conflict with this rule; (2) has no retroactive 
effect; and (3) does not require administrative proceedings before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This rule contains no new 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 77

    Animal diseases, Bison, Cattle, Reporting and recordkeeping 
requirements, Transportation, Tuberculosis.

0
Accordingly, we are amending 9 CFR part 77 as follows:

PART 77--TUBERCULOSIS

0
1. The authority citation for part 77 continues to read as follows:

    Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.


0
2. In Sec.  77.7, paragraph (b) is revised to read as follows:


Sec.  77.7  Accredited-free States or zones.

* * * * *
    (b) The following are accredited-free zones:
    (1) A zone in Michigan known as the Upper Peninsula that comprises 
Alger, Baraga, Chippewa, Delta, Dickinson, Gogebic, Houghton, Iron, 
Keweenaw, Luce, Mackinac, Marquette, Menominee, Ontonagon, and 
Schoolcraft Counties.
    (2) All of the State of New Mexico except for the zone that 
comprises Curry and Roosevelt Counties described in Sec.  77.9(b)(3).
* * * * *

0
3. In Sec.  77.9, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  77.9  Modified accredited advanced States or zones.

    (a) The following are modified accredited States: California.
    (b) The following are modified accredited advanced zones:
    (1) All of the State of Michigan except for the zones that comprise 
those counties or portions of counties in Michigan described in Sec.  
77.7(b)(1) and Sec.  77.11(b)(1).
    (2) All of the State of Minnesota except for the zones that 
comprise those counties or portions of counties in Minnesota described 
in Sec.  77.11(b)(2).
    (3) The zone in the State of New Mexico that comprises Curry and 
Roosevelt Counties.
* * * * *

    Done in Washington, DC, this 17th day of March 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E9-6252 Filed 3-20-09; 8:45 am]
BILLING CODE 3410-34-P