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###### Department of Agriculture

###### Animal and Plant Health Inspection Service 

          - 9 CFR Part 77 
          - [Docket No. 05-035-1] 

# AGENCY:

Animal and Plant Health Inspection Service, USDA. 

# ACTION:

Interim rule and request for comments. 

# SUMMARY:

We are amending the bovine tuberculosis regulations to designate the Upper Peninsula of the State of Michigan as an accredited-free zone. We have determined that Michigan meets the requirements for zone recognition and that the Upper Peninsula meets the criteria for designation as an accredited-free zone. This action relieves restrictions on the interstate movement of cattle and bison from the Upper Peninsula. 

# DATES:

This interim rule is effective September 30, 2005. We will consider all comments that we receive on or before December 5, 2005. 

# ADDRESSES:

You may submit comments by any of the following methods: 
      - EDOCKET: Go to http://www.epa.gov/​feddocket                          to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once you have entered EDOCKET, click on the “View Open APHIS Dockets” link to locate this document.                     
      - Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. 05-035-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 05-035-1.
      - Federal eRulemaking Portal: Go to http://www.regulations.gov                          and follow the instructions for locating this docket and submitting comments.                     

*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:*                         You may view APHIS documents published in the                         **Federal Register**                         and related information on the Internet at                         *http://www.aphis.usda.gov/​ppd/​rad/​webrepor.html.*

# FOR FURTHER INFORMATION CONTACT:

Dr. Michael Dutcher, Senior Staff Veterinarian, National Tuberculosis Eradication Program, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737; (301) 734-5467. 

# SUPPLEMENTARY INFORMATION:

## Background 

                    Bovine tuberculosis is a contagious and infectious granulomatous disease caused by                     *Mycobacterium bovis.*                     It affects cattle, bison, deer, elk, goats, and other warm-blooded species, including humans. Bovine tuberculosis in infected animals and humans manifests itself in lesions of the lung, bone, and other body parts, causes weight loss and general debilitation, and can be fatal. At the beginning of the last century, bovine tuberculosis caused more losses of livestock than all other livestock diseases combined. This prompted the establishment of the National Cooperative State/Federal Bovine Tuberculosis Eradication Program for bovine tuberculosis in livestock. Through this program, the Animal and Plant Health Inspection Service (APHIS) works cooperatively with the national livestock industry and State animal health agencies to eradicate tuberculosis from domestic livestock in the United States and prevent its recurrence.                 

Federal regulations implementing this program are contained in 9 CFR part 77 “Tuberculosis” (referred to below as the regulations), and in the “Uniform Methods and Rules—Bovine Tuberculosis Eradication” (UMR), which is incorporated by reference into the regulations. The regulations restrict the interstate movement of cattle, bison, and captive cervids to prevent the spread of tuberculosis. Subpart B of the regulations contains requirements for the interstate movement of cattle and bison not known to be infected with or exposed to tuberculosis. The interstate movement requirements depend upon whether the animals are moved from an accredited-free State or zone, modified accredited advanced State or zone, modified accredited State or zone, accreditation preparatory State or zone, or nonaccredited State or zone. 

### Conditions for Zone Recognition 

Under §§ 77.3 and 77.4 of the regulations, in order to qualify for zone classification by APHIS, the 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 recognition 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 an infrastructure, laws, and regulations that 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                           ( print page 58292)                        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 Third Zone in Michigan 

The State of Michigan is currently divided into two zones with different classifications. The first zone, which is classified as modified accredited, comprises Alcona, Alpena, Antrim, Charlevoix, Cheboygan, Crawford, Emmet, Montmorency, Oscoda, Otsego, and Presque Isle Counties and those portions of Iosco and Ogemaw Counties that are north of the southernmost boundary of the Huron National Forest and the Au Sable State Forest. The second zone covers the remainder of the State and is classified as modified accredited advanced. 

We have received from the State of Michigan a request for recognition of a portion of the modified accredited advanced zone as a third zone. Specifically, the State animal health officials requested that Michigan's Upper Peninsula, which consists of Alger, Baraga, Chippewa, Delta, Dickinson, Gogebic, Houghton, Iron, Keweenaw, Luce, Mackinac, Marquette, Menominee, Ontonagon, and Schoolcraft Counties, be recognized as a separate zone. In their request, Michigan officials demonstrated that Michigan meets the requirements listed above for the requested zone designation. Therefore, in this interim rule, we are recognizing Michigan's Upper Peninsula as a separate zone. 

                    With regard to cattle and bison, State animal health officials in Michigan have demonstrated to APHIS that the Upper Peninsula meets the criteria for accredited-free status set forth in the definition of                     *accredited-free State or zone*                     in § 77.5 of the regulations. In accordance with these conditions, Michigan has demonstrated that the Upper Peninsula has zero percent prevalence of affected cattle or bison herds and has had no findings of tuberculosis in any cattle or bison herds for the last 5 years. Additionally, the State complies with the conditions of the UMR.                 

Providing recognition of Michigan's Upper Peninsula as an accredited-free zone will allow cattle producers in that zone to move their cattle without a tuberculosis test, thus saving time and money. This action will therefore relieve restrictions that are no longer warranted, and facilitate further efforts of the National Tuberculosis Eradication Program. 

#### Immediate Action 

                    Immediate action is warranted to relieve restrictions on the interstate movement of cattle and bison from those counties which make up Michigan's Upper Peninsula. We have determined that Michigan's Upper Peninsula has satisfied the requirements for designation as an accredited-free zone in Michigan. 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. 

The State of Michigan has been split into two zones for bovine tuberculosis, with one classified as modified accredited and the other zone classified as modified accredited advanced. We are amending the regulations to establish Michigan's Upper Peninsula as a third zone for bovine tuberculosis, with the status level of accredited-free. 

According to the size standard established by the Small Business Administration for producers of cattle and calves (NAICS 112111, Beef cattle ranching and farming), enterprises with not more than $750,000 in annual receipts qualify as small entities. Based on data from the 2002 Census of Agriculture, 814 operations in the Upper Peninsula raised 54,315 cattle and calves in 2002. In Michigan as a whole, over 99 percent of entities engaged in cattle farming are small entities. In 2002, they owned an average of 57 cattle and had an average income of $19,620, well below the $750,000 criterion. Large operations had an average of 2,112 cattle and an average annual income of $1,692,590. The proportion of small to large cattle producers in the Upper Peninsula is presumably similar to their proportion State-wide. The overwhelming majority of operations affected by the rule are expected to be small. 

Tuberculosis testing, which includes veterinary fees and handling expenses, costs about $10 to $15 per test. There were 54,315 cattle and calves in the Upper Peninsula in 2002. Of this total, about 50 percent were breeding animals and the rest were animals in feedlots and outside feedlots. About 10 percent of those non-breeding cattle and calves are moved interstate. With accredited-free status, producers in the Upper Peninsula would no longer be required to test those animals prior to interstate movement, so savings of between $27,158 and $40,736 in forgone testing costs could be expected. If those savings were distributed evenly across the 814 operations identified in the 2002 Census of Agriculture, each operation could be expected to see savings of between approximately $33 and $50. 

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 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 interim 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 77

      - Animal diseases
      - Bison
      - Cattle
      - Reporting and recordkeeping requirements
      - Transportation
      - Tuberculosis

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

# PART 77—TUBERCULOSIS 

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

      ( print page 58293)    Authority:7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.

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

§ 77.7 

* * * * *

(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 those portions of Curry and Roosevelt Counties, NM, described in § 77.9(b)(2). 

* * * * *

3. In § 77.9, paragraph (b)(1) is revised to read as follows. 

§ 77.9 

* * * * *

(b) * * * 

(1) The following are modified accredited advanced zones: All of the State of Michigan except for the zones that comprise those counties or portions of counties in Michigan described in § 77.7(b)(1) and § 77.11(b). 

* * * * *

Done in Washington, DC, this 30th day of September 2005. 

W. Ron DeHaven, 

Administrator, Animal and Plant Health Inspection Service. 

[FR Doc. 05-20098 Filed 10-5-05; 8:45 am] 

BILLING CODE 3410-34-P