Federal Register / Vol. 60, No. 50 / Wednesday, March 15, 1995 / Rules and Regulations 13893

1, and such oranges grown in the

production area grade at least U.S.

Combination (with not less than 60

percent, by count, of the oranges in any

lot grading at least U.S. No.1).

* * * * *

Dated: March 9, 1995.

Sharon Bomer Lauritsen,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 95–6368 Filed 3–14–95; 8:45 am]

BILLING CODE 3410–02–W

Animal and Plant Health Inspection

Service

9 CFR Part 2

[Docket No. 92–158–2]

Animal Welfare; Licensing and

Records

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the Animal

Welfare regulations to require dealers,

exhibitors, and operators of auction

sales who apply for license renewal to

certify that, to the best of their

knowledge and belief, they are in

compliance with the regulations before

a renewal is issued. We are also

amending the regulations to require

dealers and exhibitors to use certain

forms to make, keep, and maintain the

animal identification records required

by the regulations, unless a variance has

been granted that would allow the use

of a computerized recordkeeping system

that has been determined by the

Administrator to meet the requirements

of the regulations. These changes will

help ensure that applicants for license

renewal are in compliance with the

regulations and that dealers and

exhibitors keep accurate and complete

records, thus promoting compliance

with the Animal Welfare Act.

EFFECTIVE DATE: April 14, 1995.

FOR FURTHER INFORMATION CONTACT: Dr.

Debra E. Beasley, Senior Staff

Veterinarian, Animal and Plant Health

Inspection Service, Regulatory

Enforcement and Animal Care, Animal

Care, 4700 River Road Unit 84,

Riverdale, MD 20737–1234; (301) 734–

7833.

SUPPLEMENTARY INFORMATION:

Background

The Animal Welfare regulations

contained in 9 CFR part 2 (referred to

below as the regulations) pertain to the

administrative and institutional

responsibilities of regulated persons

under the Animal Welfare Act (7 U.S.C.

2131, et seq.) (the Act).

On December 28, 1993, we published

in the Federal Register (58 FR 68559–

68561, Docket No. 92–158–1) a proposal

to amend the regulations to require that

an applicant for license renewal certify

that, to the best of the applicant’s

knowledge and belief, he or she is in

compliance with the regulations and

standards and agrees to continue to be

in compliance upon issuance of a

renewed license. In that same

document, we also proposed to amend

the regulations to require dealers and

exhibitors to use Veterinary Services

(VS) Form 18–5, ‘‘Record of Dogs and

Cats on Hand,’’ and VS Form 18–6,

‘‘Record of Disposition of Dogs and

Cats,’’ to make, keep, and maintain the

information required by § 2.75(a)(1) of

the regulations. We also proposed to

add Animal and Plant Health Inspection

Service (APHIS) form numbers in front

of the VS form numbers that appear in

several places in the regulations.

We solicited comments concerning

our proposal for a 60-day comment

period ending February 28, 1994. We

received 11 comments by that date. The

comments were submitted by a

scientific society, animal breeders and

distributors, humane and animal rights

organizations, and private citizens. We

carefully considered all of the

comments we received. They are

discussed below by topic.

Recordkeeping

Comment: The use of VS Forms 18–

5 and 18–6 should remain optional

since many facilities have accurate and

efficient computerized recordkeeping

systems. The forms that APHIS proposes

to require are cumbersome, repetitive,

and outdated and they do not provide

spaces for all the information that is

required by the regulations.

Response: We understand that many

dealers and exhibitors, especially the

larger operations, may be using

computerized systems to make, keep,

and maintain the records required by

§ 2.75(a)(1) of the regulations. Because it

would be difficult for some dealers and

exhibitors to switch over to a paper

system, we have added a provision to

the regulations that will enable a dealer

or exhibitor to apply for a variance from

the requirement to use VS Forms 18–5

and 18–6. If APHIS determines that a

dealer or exhibitor is maintaining a

computerized recordkeeping system that

is adequate to keep the required

information, a variance will be granted.

An appeal procedure is also included

for dealers or exhibitors who have had

their request for a variance denied. The

variance is an option only for those

dealers and exhibitors who are using a

computerized recordkeeping system; a

variance will not be granted for

alternative paper records. With regard to

the complaint that the forms are

outdated, APHIS is currently developing

updated forms that reflect the

requirements of the regulations. The

updated forms will be distributed as

supplies of the existing forms are

depleted.

License Renewal

Comment: The proposed certification

will be effective only if it supports

APHIS in denying the license renewal

applications of facilities not in

compliance with the regulations and

standards. Otherwise, the certification

will not encourage compliance any

more than the statement that applicants

are currently required to sign.

Response: The regulations in § 2.5

state that a license will be renewed if,

before the expiration of the license, the

licensee files an application for license

renewal, submits an annual report as

required by § 2.7, and pays the required

fees. There are no provisions in the

regulations for denying a license

renewal application as long as the

licensee has complied with those

requirements. However, as provided in

§ 2.1(f) of the regulations, a person who

fails to comply with any provision of

the Act or any provision of the

regulations and standards shall be liable

to having his or her license suspended

or revoked.

Comment: If a facility was in the

process of correcting a deficiency, it

would be unable to certify that it is in

compliance with the regulations and

standards until the deficiency was

completely corrected, which could take

up to 30 days or even longer. Similarly,

it would be difficult for a licensee with

more than one facility to be certain that

all his or her facilities were, at any given

time, in compliance with the regulations

and standards. The delays that could

result from having to be certain that all

the regulations and standards had been

satisfied could cause a facility to miss

its deadline for license renewal.

Response: If a licensee who had been

cited for a deficiency was actively

working to correct that deficiency,

APHIS would be aware—or could be

informed—that the licensee was

addressing the problem and was making

a good-faith effort to comply with the

regulations. Such a situation would be

no reason for a licensee to delay filing

a license renewal application. With

regard to the example of a licensee with

more than one facility, it is the

responsibility of a licensee, either

personally or through his or her
13894 Federal Register / Vol. 60, No. 50 / Wednesday, March 15, 1995 / Rules and Regulations

employees, to ensure that each facility

is maintained and operated in

compliance with the regulations. If a

licensee is aware of a deficiency in one

of his or her facilities, it is incumbent

upon the licensee to address the

deficiency in order to remain in

compliance with the regulations. Having

responsibility for more than one facility

is not an excuse for knowingly operating

in violation of the regulations and

standards.

Comment: Prior to 1979, APHIS

allowed license applicants to submit an

affidavit stating that their premises,

facilities, and equipment were in

compliance with the regulations and

standards, in lieu of an APHIS

inspection. However, in 1979, APHIS

amended the regulations to remove the

applicant affidavit method of

ascertaining compliance because of

misrepresentation and misuse of the

method by some applicants. In light of

that experience, there does not appear to

be any advantage to requiring license

applicants to agree to comply with the

regulations and standards. Therefore, if

APHIS finalizes its proposed

certification requirement in § 2.2, the

text of § 2.2 must contain a reference to

the inspection provisions of § 2.3.

Response: The proposed certification

requirement was not presented as an

alternative means of ascertaining

compliance or as a substitute for

inspections. The certification

requirement will have no effect on the

provisions of § 2.3, which requires

applicants for an initial license or

license renewal to make their animals,

premises, facilities, vehicles,

equipment, other premises, and records

available for inspection so that an

APHIS inspector may ascertain the

applicant’s compliance with the

standards and regulations.

Comment: It is unclear how APHIS

intends licensees to certify that they are

in compliance. A simple statement

would be ineffective, and any

documented statement would entail the

use of lengthy forms, which impose a

significant additional paperwork burden

on licensees. Either way, new

regulations are no substitute for APHIS

performing rigorous inspections.

Response: As described in the

proposed rule, an applicant for license

renewal would certify that he or she is,

to the best of the applicant’s knowledge

and belief, in compliance with the

regulations and standards and agrees to

continue to comply with the regulations

and standards by signing the application

form, which will contain a statement to

that effect. The certification will not

necessitate the use of lengthy forms or

the imposition of significant additional

paperwork burdens. As mentioned

above, APHIS does not intend for the

certification to take the place of

inspections.

Comment: The proposed certification

requirement should help encourage

compliance. However, to promote even

greater compliance, the certification

should actually take the form of an

affidavit, signed by the applicant,

stating that the applicant has read the

Act, its amendments, and the applicable

regulations and standards in their

totality and understands their contents

fully. Further, the applicant should

verify that he or she is in compliance

with, and will continue to comply with,

the Act and its implementing

regulations and standards. The

applicant should have to have paid any

outstanding fines levied by the USDA

for violations of the Act. Additionally,

the application should include a

warning stating that, under 18 U.S.C.

1001, anyone making a false, fictitious,

or fraudulent statement on the

application could be subject to a fine of

$10,000 and 5 years in prison.

Response: We believe that an affidavit

would accomplish no more than the

signed statement currently required.

Similarly, because APHIS already

supplies each applicant a copy of the

applicable regulations and standards,

we do not believe that supplying a copy

of the Act and its amendments would

add to an applicant’s knowledge of his

or her responsibilities, which are

spelled out in the regulations and

standards. Because a person who fails to

comply with the Act or the regulations

and standards is liable to having his or

her license suspended or revoked, it is

in each licensee’s best interests to know

what is required of him or her. We

cannot, however, reasonably require a

person to swear that he or she has read

the Act, its amendments, and the

applicable regulations and standards in

their totality and understands their

contents fully. With regard to denying

renewals to persons with unpaid fines,

we stated above that the regulations

make no provision for the denial of a

license renewal as long as the licensee

filed an application for license renewal

on time, submitted an annual report as

required by § 2.7, and has paid the

required fees. Other avenues are utilized

by APHIS to collect unpaid fines.

Finally, the commenter mentioned the

penalties provided under 18 U.S.C.

1001. Those penalties can be applied in

matters within the jurisdiction of

APHIS, and we will post a warning to

that effect on the license renewal

application form that we are developing.

Addition of APHIS Form Numbers

Three commenters mentioned our

proposal to add APHIS form numbers in

front of the VS form numbers that

appear in several places in the

regulations. Each of those commenters

supported the proposed change.

Comments Outside the Scope of This

Rulemaking

One commenter strongly supported

the mandatory use of VS forms, but

added that a photograph of each

individual dog or cat should be required

as part of the record. Similarly, another

commenter suggested that additional

information be required, such as a

second piece of identification, a

notarized verification of exempt status

and a signed statement, when

applicable, verifying that a randomsource animal was held for the

mandated period. However, the

proposed rule did not propose any

changes to the type of information that

dealers and exhibitors must keep as part

of the required animal identification

records. Rather, we proposed that

specific forms be used to record and

maintain the information already

required by the regulations in

§ 2.75(a)(1). Because of this, such

comments are outside the scope of the

proposed rule and no changes have been

made in this final rule as a result of

those comments. Any such changes

would have to be proposed as part of a

separate proposed rule.

Other commenters submitted

comments concerning individual

identification of animals, the definitions

of Class A and B dealers, requiring the

use of other forms, individually

notifying licensees of proposed rules

and other regulatory actions, and the

development of new forms. Again, such

comments are outside the scope of the

proposed rule and, therefore, no

changes have been made in this final

rule as a result of those comments. Any

such changes would have to be

proposed as part of a separate proposed

rule.

Therefore, based on the rationale set

forth in the proposed rule and in this

document, we are adopting the

provisions of the proposal as a final

rule, with the changes discussed in this

document.

Miscellaneous

As mentioned above, APHIS is

currently developing an updated

version of VS Form 18–5, ‘‘Record of

Dogs and Cats on Hand.’’ The updated

form includes new spaces for the

recording of information pertaining to

the acquisition of the dogs or cats
Federal Register / Vol. 60, No. 50 / Wednesday, March 15, 1995 / Rules and Regulations 13895

covered by the form. To reflect the

inclusion of the new spaces, VS Form

18–5 has been renamed ‘‘Record of

Acquisition and Dogs and Cats on

Hand.’’ The two places in the

regulations where the title of VS Form

18–5 is mentioned—in §§ 2.35(d)(1) and

2.75(a)(2)—have been amended in this

document to reflect the title change.

We have slightly adjusted the

language of § 2.2(b) for the purpose of

greater clarity.

Executive Order 12866 and Regulatory

Flexibility Act

This rule has been reviewed under

Executive Order 12866. The rule has

been determined to be not significant for

the purpose of Executive Order 12866

and, therefore, has not been reviewed by

the Office of Management and Budget.

We are amending the Animal Welfare

regulations to require applicants for

license renewal to certify that they are

in compliance with the regulations

before a renewal is issued. We are also

amending the regulations to require

dealers and exhibitors to use certain

forms to make, keep, and maintain the

animal identification records required

by the regulations. These changes will

help ensure that applicants for license

renewal are in compliance with the

regulations and that dealers and

exhibitors keep accurate and complete

records. We do not expect there to be an

economic impact on any entities, large

or small, that will be affected by these

changes in the regulations.

Because all licensees are currently

required to operate in compliance with

the regulations, the requirement for

license renewal applicants to certify that

they are in compliance with the

regulations will have no effect in terms

of increased operational costs or

burdens. Similarly, requiring dealers

and exhibitors to use VS Form 18–5 and

VS Form 18–6 to make, keep, and

maintain the required animal

identification records will involve no

new costs or burdens. Dealers and

exhibitors are already required to keep

the records, so they will not have to

gather or record any new information in

order to complete the forms. The forms

are provided by APHIS to dealers and

exhibitors free of charge, and we will

not require any existing records to be

converted over to the new forms.

Additionally, a dealer or exhibitor who

wished to do so could obtain a variance

from the requirement to use the forms

if the computerized recordkeeping

system has been determined by the

Administrator to meet the requirements

of the regulations.

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 12778

This final rule has been reviewed

under Executive Order 12778, Civil

Justice Reform. It is not intended to

have retroactive effect. This rule does

not preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule. The Act does not provide

administrative procedures which must

be exhausted prior to a judicial

challenge to the provisions of this rule.

Paperwork Reduction Act

In accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501

et seq.), the information collection or

recordkeeping requirements included in

this final rule have been submitted for

approval to the Office of Management

and Budget.

List of Subjects in 9 CFR Part 2

Animal welfare, Pets, Reporting and

recordkeeping requirements, Research.

Accordingly, 9 CFR part 2 is amended

as follows:

PART 2—REGULATIONS

1. The authority citation for part 2

continues to read as follows:

Authority: 7 U.S.C. 2131–2159; 7 CFR 2.17,

2.51, and 371.2(g).

2. Section 2.2 is revised to read as

follows:

§ 2.2 Acknowledgment of regulations and

standards.

(a) Application for initial license.

APHIS will supply a copy of the

applicable regulations and standards to

the applicant with each request for a

license application. The applicant shall

acknowledge receipt of the regulations

and standards and agree to comply with

them by signing the application form

before a license will be issued.

(b) Application for license renewal.

APHIS will supply a copy of the

applicable regulations and standards to

the applicant for license renewal with

each request for a license renewal.

Before a license will be renewed, the

applicant for license renewal shall

acknowledge receipt of the regulations

and standards and shall certify by

signing the application form that, to the

best of the applicant’s knowledge and

belief, he or she is in compliance with

the regulations and standards and agrees

to continue to comply with the

regulations and standards.

§ 2.5 [Amended]

3. In § 2.5, paragraph (b), the first

sentence is amended by adding the

words ‘‘APHIS Form 7003/’’

immediately before the words ‘‘VS Form

18–3’’.

§ 2.35 [Amended]

4. In § 2.35, paragraph (d)(1) is

amended by adding the words ‘‘APHIS

Form 7001/’’ immediately before the

words ‘‘VS Form 18–1’’; by adding the

words ‘‘Acquisition and’’ before the

words ‘‘Dogs and Cats on Hand’’; and by

adding the words ‘‘APHIS Form 7005/’’

immediately before the words ‘‘VS Form

18–5’’.

5. In § 2.35, paragraph (d)(2) is

amended by adding the words ‘‘APHIS

Form 7001/’’ immediately before the

words ‘‘VS Form 18–1’’ and by adding

the words ‘‘APHIS Form 7006/’’

immediately before the words ‘‘VS Form

18–6’’.

§ 2.38 [Amended]

6. In § 2.38, paragraph (h)(3) is

amended by adding the words ‘‘APHIS

Form 7001/’’ immediately before the

words ‘‘VS Form 18–1’’.

7. In § 2.38, paragraph (i)(3), the

beginning of the second sentence is

amended by removing the words

‘‘Veterinary Services’’ and adding the

words ‘‘APHIS Form 7009/VS’’ in their

place.

8. Section 2.75 is amended as follows:

a. Paragraph (a)(2) is revised to read

as set forth below.

b. In paragraph (a)(3), the words

‘‘APHIS Form 7001/’’ are added

immediately before the words ‘‘VS Form

18–1’’, and the words ‘‘paragraph (a)(1)

of this section and’’ are removed.

c. In paragraph (b)(2), the words

‘‘APHIS Form 7019/’’ are added

immediately before the words ‘‘VS Form

18–19’’, and the words ‘‘APHIS Form

7020/’’ are added immediately before

the words ‘‘VS Form 18–20’’.

§ 2.75 Records: Dealers and exhibitors.

(a) * * *

(2) Each dealer and exhibitor shall use

Record of Acquisition and Dogs and

Cats on Hand (APHIS Form 7005/VS

Form 18–5) and Record of Disposition of

Dogs and Cats (APHIS Form 7006/VS

Form 18–6) to make, keep, and maintain

the information required by paragraph
13896 Federal Register / Vol. 60, No. 50 / Wednesday, March 15, 1995 / Rules and Regulations

(a)(1) of this section: Provided, that if a

dealer or exhibitor who uses a

computerized recordkeeping system

believes that APHIS Form 7005/VS

Form 18–5 and APHIS Form 7006/VS

Form 18–6 are unsuitable for him or her

to make, keep, and maintain the

information required by paragraph (a)(1)

of this section, the dealer or exhibitor

may request a variance from the

requirement to use APHIS Form 7005/

VS Form 18–5 and APHIS Form 7006/

VS Form 18–6.

(i) The request for a variance must

consist of a written statement describing

why APHIS Form 7005/VS Form 18–5

and APHIS Form 7006/VS Form 18–6

are unsuitable for the dealer or exhibitor

to make, keep, and maintain the

information required by paragraph (a)(1)

of this section, and a description of the

computerized recordkeeping system the

person would use in lieu of APHIS

Form 7005/VS Form 18–5 and APHIS

Form 7006/VS Form 18–6 to make,

keep, and maintain the information

required by paragraph (a)(1) of this

section. APHIS will advise the person as

to the disposition of his or her request

for a variance from the requirement to

use APHIS Form 7005/VS Form 18–5

and APHIS Form 7006/VS Form 18–6.

(ii) A dealer or exhibitor whose

request for a variance has been denied

may request a hearing in accordance

with the applicable rules of practice for

the purpose of showing why the request

for a variance should not be denied. The

denial of the variance shall remain in

effect until the final legal decision has

been rendered.

* * * * *

§ 2.78 [Amended]

9. In § 2.78, paragraph (d) is amended

by adding the words ‘‘APHIS Form

7001/’’ immediately before the words

‘‘VS Form 18–1’’.

§ 2.102 [Amended]

10. In § 2.102, paragraph (a)(3), the

beginning of the second sentence is

amended by removing the words

‘‘Veterinary Services’’ and adding the

words ‘‘APHIS Form 7009/VS’’ in their

place.

Done in Washington, DC, this 9th day of

March 1995.

Terry L. Medley,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 95–6369 Filed 3–14–95; 8:45 am]

BILLING CODE 3410–34–P

9 CFR Parts 91 and 92

[Docket No. 94–076–1]

Cattle Imported In-Bond for Feeding

and Return to Mexico

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Interim rule and request for

comments.

SUMMARY: We are amending the animal

exportation and importation regulations

by removing provisions that allow the

temporary, in-bond importation of cattle

from Mexico into the United States for

feeding and return to Mexico for

slaughter. We are taking this action

because the U.S. Customs Service, to

comply with provisions of the North

American Free Trade Agreement, has

discontinued its collection of duties and

bonds on cattle imported into the

United States from Mexico. Without a

bond, we are unable to meaningfully

penalize importers who fail to return

those cattle to Mexico. We believe,

therefore, that the current in-bond

program must be terminated to prevent

the dissemination into the United States

of animal diseases by in-bond cattle that

remain in the United States in violation

of the regulations.

DATES: Interim rule effective March 30,

1995. Consideration will be given only

to comments received on or before May

15, 1995.

ADDRESSES: Please send an original and

three copies of your comments to

APHIS, PPD, Regulatory Analysis and

Development, 4700 River Road Unit

118, Riverdale, MD 20737–1238. Please

state that your comments refer to Docket

No. 94–076–1. Comments received may

be inspected at USDA, room 1141,

South Building, 14th Street and

Independence Avenue SW.,

Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday,

except holidays. Persons wishing to

inspect comments are requested to call

ahead on (202) 690–2817 to facilitate

entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Dr.

David Vogt, Senior Staff Veterinarian,

APHIS, Veterinary Services, Import/

Export Animals Staff, 4700 River Road

Unit 39, Riverdale, MD 20737–1231;

(301) 734–8170.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 9 CFR part 92

prohibit or restrict the importation of

certain animals into the United States to

prevent the introduction of

communicable diseases of livestock and

poultry. Subpart D of part 92 (§§ 92.400

through 92.435), referred to below as the

regulations, pertains to the importation

of ruminants. Sections 92.424 through

92.429 of the regulations contain

specific provisions regarding the

importation of ruminants, including

cattle, from Mexico.

Before the effective date of this rule,

§ 92.427(e) of the regulations provided

for the temporary importation of cattle

from Mexico into the United States

under United States Customs bond for

feeding and return to Mexico for

slaughter. Cattle imported under this inbond program were exempt from some

requirements that applied to the

importation of other cattle from Mexico,

but were subject to additional

restrictions during the time they were in

the United States that did not apply to

other cattle imported from Mexico.

Specifically, in-bond cattle from

Mexico could be imported without

meeting the requirements of

§ 92.427(c)(1) regarding herd tests for

tuberculosis and without meeting the

requirements of § 92.427(d)(1) regarding

herd tests for brucellosis if the cattle

were: (1) Moved directly by land from

the port of entry to an approved

quarantined feedlot; (2) removed from

the quarantined feedlot only to be

moved directly to a Mexican port of

entry for return to Mexico for slaughter;

and (3) moved only in trucks or railway

cars that had been sealed with a seal

applied by a U.S. Department of

Agriculture inspector.

Additionally, in-bond cattle from

Mexico could be imported without the

official record of negative brucellosis

test required by § 92.424(b) and without

meeting the requirements of § 92.427(d)

regarding brucellosis if the cattle were

under 24 months of age and were

accompanied by a certificate stating that

the cattle had been vaccinated for

brucellosis.

The movement, quarantine, and

vaccination requirements discussed

above were designed to prevent the

transmission of animal diseases from inbond Mexican cattle to other animals in

the United States. However, if the

importer of the in-bond Mexican cattle

did not adhere to those requirements,

there was a serious risk that those cattle,

which had not been tested for

tuberculosis or brucellosis prior to

entering the United States, would

spread disease to domestic livestock. As

a means of ensuring that the in-bond

Mexican cattle were maintained in

accordance with the regulations while

in the United States and were actually

returned to Mexico upon completion of

their feeding period in the United

States, the regulations required that the

importer of the Mexican cattle post a