[Federal Register Volume 61, Number 98 (Monday, May 20, 1996)]
[Rules and Regulations]
[Pages 25135-25138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12623]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 61, No. 98 / Monday, May 20, 1996 / Rules and 
Regulations

[[Page 25135]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 50 and 77

[Docket No. 94-133-2]


Tuberculosis in Cattle, Bison, and Cervids; Payment of Indemnity

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, with one change, an interim 
rule that amended the regulations to provide for the payment of 
indemnity for cervids destroyed because of tuberculosis, and to provide 
for the payment of indemnity for cattle, bison, and cervids found to 
have been exposed to tuberculosis by reason of association with any 
tuberculous livestock. The interim rule was necessary to encourage 
owners to rapidly remove cattle, bison, and cervids affected with and 
exposed to tuberculosis from their herds. Rapid removal of such cattle, 
bison, and cervids will help protect other cattle, bison, and cervids 
from tuberculosis and will facilitate tuberculosis eradication efforts 
in the United States. The interim rule also amended the regulations to 
deny claims for indemnity for depopulation of cattle, bison, and cervid 
herds unless other exposed livestock in the herd have been destroyed. 
This action was necessary to help ensure that when cattle, bison, and 
cervids in a herd are depopulated, other livestock do not remain as 
potential sources of infection when the owner restocks the herd with 
healthy animals.

EFFECTIVE DATE: June 19, 1996.

FOR FURTHER INFORMATION CONTACT: Dr. Mitchell A. Essey, Senior Staff 
Veterinarian, Cattle Diseases and Surveillance, VS, APHIS, Suite 3B08, 
4700 River Road Unit 36, Riverdale, MD 20737-1231, (301) 734-8715.

SUPPLEMENTARY INFORMATION:

Background

    Bovine tuberculosis (referred to below as tuberculosis) is a 
serious communicable disease of cattle, bison, and other species, 
including humans, caused by Mycobacterium bovis. Tuberculosis causes 
weight loss, general debilitation, and sometimes death. The regulations 
in 9 CFR part 50 provide for payment of Federal indemnity to owners of 
certain cattle, bison, or swine destroyed because of tuberculosis.
    In an interim rule effective and published in the Federal Register 
on July 24, 1995 (60 FR 37804-37810, Docket No. 94-133-1), the Animal 
and Plant Health Inspection Service (APHIS) amended the tuberculosis 
regulations in 9 CFR part 50 to provide for the payment of indemnity 
for cervids destroyed because of tuberculosis, at rates not to exceed 
$750 for any reactor cervid and $450 for any exposed cervid. In 
conjunction with this action, we amended the regulations to make the 
provisions that apply to cattle and bison also apply to cervids, where 
appropriate. These provisions include recordkeeping, procedures for 
claiming indemnity, and claims not allowed.
    These provisions also include identification of reactor and exposed 
cervids to be moved interstate to slaughter. The interim rule required 
that reactor cervids be identified by branding the letter ``T'' high on 
the left hip near the tailhead and at least 5 by 5 centimeters (2 by 2 
inches) in size and by attaching to the left ear an approved metal 
eartag bearing a serial number and the inscription ``U.S. Reactor'', or 
a similar State reactor tag; and that exposed cervids be identified by 
branding the letter ``S'' high on the left hip near the tailhead and at 
least 5 by 5 centimeters (2 by 2 inches) in size and by attaching to 
the left ear an approved metal eartag bearing a serial number. As an 
alternative to branding, we allowed exposed cervids to be moved 
interstate to slaughter without branding if they are either accompanied 
directly to slaughter by an APHIS or State representative or moved 
directly to slaughter in vehicles closed with official seals applied 
and removed by an APHIS representative, State representative, 
accredited veterinarian, or an individual authorized for this purpose 
by an APHIS representative. For reactor cervids, we allowed the same 
movement without branding as for exposed cervids, if the reactors are 
identified by a ``TB'' tattooed on the left ear and with yellow paint 
sprayed on the left ear.
    We also amended the regulations to provide for the payment of 
indemnity for cattle, bison, and cervids found to have been exposed to 
tuberculosis by reason of association with any tuberculous livestock, 
not just by reason of association with tuberculous cattle and bison. 
Finally, we amended the regulations to deny claims for indemnity for 
depopulation of cattle, bison, and cervid herds unless other exposed 
livestock in the herd have been destroyed.
    Comments on the interim rule were required to be received on or 
before September 22, 1995. We received 50 comments by that date. They 
were from cervid producers and cervid producer associations, other 
livestock producers, veterinary associations, and animal welfare 
groups. Forty-eight of the comments supported the interim rule without 
change; two were opposed to the interim rule. The objections raised by 
the two comments opposed to the rule are discussed below.
    Both of the opposing comments were against the interim rule because 
it concerns the farming of cervids, and the commenters oppose any 
activities involving the confinement and breeding of wild animals. One 
commenter stated that ``by offering to pay businesses to slaughter off 
those captive cervids who test positive for tuberculosis, or who are 
exposed to the disease, APHIS, in fact, ensures that the confinement 
and breeding of cervids shall not only continue, but also become more 
profitable, and, inevitably, more widespread.''
    The commenters gave two reasons for objecting to the farming of 
cervids. One is that they claim the farming of wildlife is ecologically 
irresponsible. They argue that cervids do not have a long history of 
domestication and breeding for docility, making them ill-suited for 
captivity; and, the existence of deer farms encourages the public to 
view wildlife as private property, undermining efforts to protect 
wildlife in its natural habitat. The second reason is that they claim 
the farming of wildlife is epidemiologically unwise because it

[[Page 25136]]

facilitates disease transfer between wild and domestic species. We have 
made no changes based on these comments.
    The practice of raising deer and elk for agricultural purposes has 
existed for thousands of years and is considered an established and 
legitimate agricultural activity. Deer have been farmed in China since 
before 3000 B.C. The Romans were active game ranchers, and deer and elk 
farming is today a standard agricultural practice in Europe. Breeding 
and production of deer, elk, and other cervids has taken place in the 
United States since at least the 1930's.
    It is true that the last 20 years has seen a marked increase in the 
number of captive cervid farms and ranches. There are currently more 
than 1,600 deer and elk owners in the United States, raising about 
250,000 head. This may account for the increase in the number of M. 
bovis cases discovered in captive cervid herds in the last decade. It 
is not APHIS' mission, nor is it within our authority, to prohibit what 
is considered a legitimate agricultural practice. If APHIS were to 
ignore discoveries of tuberculosis in captive cervids, the consequences 
for all U.S. livestock, and for wild cervids and other wildlife that 
can contract tuberculosis, would be devastating. The mission of APHIS 
is to ensure the health of all livestock in the United States. The 
indemnity paid to ranchers who must sacrifice tuberculous livestock is 
not enough to help make their businesses more profitable--the slaughter 
of diseased livestock always results in monetary loss to an owner. The 
payment may enable the ranchers to restock their herds, but also will 
encourage owners who may not otherwise depopulate a tuberculous herd 
for fear of monetary loss to slaughter their animals knowing they will 
receive partial compensation. The payment of indemnity to owners of 
reactor and exposed cervids is very important not only to achieve 
tuberculosis-free herds of captive cervids, but for the health of all 
U.S. livestock and for the health of U.S. wildlife.
    One of the opposing commenters asked that, if APHIS does choose to 
make the interim rule final, we amend it to eliminate the need for 
branding by requiring that all reactor and exposed cervids moved 
interstate to slaughter be accompanied by an APHIS or State 
representative or be moved in vehicles closed with official seals 
applied and removed by an APHIS representative, a State representative, 
an accredited veterinarian, or an individual authorized for this 
purpose by an APHIS representative. We have made no changes based on 
this comment.
    It is our belief that most cervid owners will choose to move their 
animals to slaughter without branding using one of the options provided 
in the interim rule. Branding a herd of livestock is time-consuming, 
difficult, and costly because of the effort and personnel needed to 
restrain each animal. This is even more true for cervids than for other 
livestock because, as one commenter pointed out, cervids are powerful, 
flighty, and easily frightened animals requiring firmer restraint than 
most domesticated cattle and posing a safety risk to anyone handling 
them. It is far easier to simply herd the animals into a truck which is 
then sealed by the APHIS representative, State representative, or 
accredited veterinarian who identified the herd. However, there are 
always circumstances under which it is impractical or unfeasible for 
owners to move their animals in this manner, such as lack of a proper 
vehicle, unavailability of APHIS or State personnel, or inability to 
market the animals immediately. Under such circumstances, it would be 
necessary for owners to have the cervids branded.
    The commenter further asked that, if we do not make the change 
requested above, we amend the interim rule by replacing the requirement 
that cervids be marked with a hot-iron brand with a requirement that 
allows for any method of marking (specifically, freeze-branding) that 
produces permanence and legibility by the time of an animal's shipment 
to slaughter, even if the mark is not instantly recognizable upon 
application. We have made no changes based on this comment.
    This rulemaking concerns animals that have responded to a test for 
tuberculosis, or are known to have been exposed to an animal that has 
responded to a test for tuberculosis. Because tuberculosis is such a 
destructive disease, it is imperative that such animals be either 
identified immediately or moved to slaughter in such a manner that 
there is no significant risk the animals will be diverted from their 
destination. For this reason we did not propose to allow marking 
methods (such as freeze-branding) that are not instantly recognizable 
for identifying tuberculosis reactor and exposed cervids. The necessity 
for an instantly recognizable mark is so that the animals are not 
unknowingly commingled with healthy animals after they leave the 
premises where they were identified for slaughter. Even if the 
``instantly recognizable'' requirement were to be waived to allow 
freeze-branding, the owners of reactor or exposed cervids would have to 
keep those animals under quarantine for the 18-21 days that it takes 
for the mark to become visible. That extra time on the farm would 
increase the chances that healthy animals might become exposed or 
infected. A central goal of the tuberculosis eradication program is to 
identify diseased animals and get them away from other animals before 
the disease can spread. To require the animals to be kept on the farm 
runs counter to that goal. The owners of the quarantined cervids would 
also be subject to economic losses associated with feeding and caring 
for the animals, potential decreases in market prices, and animals 
dying before sale.
    The commenter pointed out that the tattoo mark that the interim 
rule allows for reactor cervids moved to slaughter in sealed vehicles 
is instantly recognizable, and that we should allow this method of 
marking for exposed cervids, as well. The tattoo mark in the ear of 
reactor cervids moved to slaughter in a sealed vehicle is an added 
precaution to ensure that a tuberculosis reactor is not sold for any 
purpose other than slaughter.
    There are problems with tattooing that prevent us from offering it 
as a general alternative to branding for all disease-affected animals. 
One is that the tattoo must be on skin (not hair) in order to be 
legible. We have chosen the inside of the ear as the most accessible 
and reliable area on which to place a tattoo. However, unlike a brand, 
which can be applied and spotted more easily, the animal's head must be 
restrained in order to tattoo the ear, and in order to see the tattoo 
at a later time. Yellow paint on the ear can help identify an animal 
which has a ``TB'' tattoo, but it is not foolproof, as paint can wear 
or rub off. For these reasons, we have chosen to confine the use of a 
tattoo as disease identification to tuberculosis reactors that are 
moved to slaughter in sealed vehicles.

Miscellaneous Change

    As stated previously, the interim rule required that reactor 
cervids be identified by a brand and by attaching to the left ear an 
approved metal eartag bearing a serial number and the inscription 
``U.S. Reactor'', or similar State reactor tag; and that exposed 
cervids be identified by a brand and by attaching to the left ear an 
approved metal eartag bearing a serial number. We recently published a 
final rule that required the same identification for tuberculosis 
reactor and exposed cattle and bison (Docket No. 95-006-2, 60 FR 48362-
48369, published September 19, 1995).

[[Page 25137]]

    Although not mentioned in any comments we received on this interim 
rule or on the final rule for cattle and bison, it has nevertheless 
come to our attention that the requirement that exposed cattle, bison, 
and cervids be tagged on the left ear needs to be revised to allow the 
eartag to be attached to either ear. The eartag attached to reactor 
cattle, bison, and cervids bears the inscription ``U.S. Reactor'', and 
has historically been attached to the left ear to help quickly 
differentiate reactors from other cattle, bison, and cervids. The 
eartag attached to exposed cattle, bison, and cervids is not a special 
eartag, but is the same eartag used to identify any animal that has 
been tested for tuberculosis. Historically, we have not specified to 
which ear the tag should be attached, and in some cases, it has been 
policy to attach all eartags except reactor tags to the right ear. 
Veterinarians and cattle, bison, and cervid owners have been used to 
attaching non-reactor eartags to either ear, and we have experienced no 
problems with this system.
    Therefore, to avoid confusion, we are revising the interim rule to 
allow exposed cervids to be identified by attaching to either ear an 
approved metal eartag bearing a serial number. We are also revising the 
regulations in 9 CFR part 50 and part 77, concerning tuberculosis in 
cattle and bison, to allow exposed cattle and bison to be identified by 
attaching to either ear an approved metal eartag bearing a serial 
number.
    Therefore, based on the rationale set forth in the interim rule and 
in this document, we are adopting the provisions of the interim rule as 
a final rule, with the change discussed in this document.

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 purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    This document makes final an interim rule effective and published 
in the Federal Register on July 24, 1995 (60 FR 37804-37810, Docket No. 
94-133-1). As part of the interim rule document, we performed an 
Initial Regulatory Flexibility Analysis, in which we invited comments 
concerning potential effects of the interim rule. We stated that we 
were particularly interested in determining the number and kind of 
small entities that might incur benefits or costs from implementation 
of the rule. None of the comments we received on the interim rule 
addressed our Initial Regulatory Flexibility Analysis, and none 
provided any information of the type we requested. We have therefore 
based this Final Regulatory Flexibility Analysis on the data available 
to us.
    The interim rule provided for the payment of indemnity for the 
destruction of tuberculosis reactor cervids, at the rate of up to $750 
per head. The interim rule also provided for the payment of indemnity 
for cervids, cattle, or bison that are destroyed because of 
tuberculosis after being exposed to any tuberculous livestock, at the 
rate of up to $450 per head. These are the same rates currently 
provided in the regulations for tuberculosis reactor cattle and bison 
and for cattle and bison exposed to tuberculous cattle and bison. The 
interim rule was necessary to encourage owners to rapidly remove 
cattle, bison, and cervids affected with and exposed to tuberculosis 
from their herds, thereby facilitating tuberculosis eradication efforts 
in the United States. Depopulation of tuberculous cattle, bison, and 
cervids is voluntary.
    Cervid producers affected by this rule would be primarily producers 
of deer and elk. There are approximately 1,600 deer and elk producers 
in the United States, raising about 250,000 head under controlled farm 
conditions. Holdings vary in size and degree of commercialization, but 
almost all deer and elk producers can be classified as small businesses 
(defined by the Small Business Administration as having less than $0.5 
million annual gross receipts). However, many producers rely on other 
sources of income (such as dairy farming or beef cattle ranching) for 
their livelihoods.
    In general, elk producers concentrate on building up their herds, 
with most newborns retained as breeding stock. However, a fair market 
value for a heifer elk is between $4,000 and $5,000. Annual income is 
earned from the sale of antlers cut in the velvet stage of growth. The 
antlers sell for about $65 per pound, and a single bull elk can produce 
an average of 18 pounds of antlers per year, for more than 10 years. 
Thus, a gross income of $1,000 or more can be derived per year from a 
bull elk.
    The value per animal is lower for deer than for elk, and varies by 
species. Currently, at private sales, prices for good quality fallow 
does and bucks range between $500 and $1,000. Young deer command only 
$300 to $500 per head. Slightly lower prices prevail at public 
auctions.
    Destruction of cervid herds affected with tuberculosis is voluntary 
on the part of the owners. The indemnity payments of up to $750 per 
head for reactor cervids and up to $450 per head for exposed cervids 
will partially compensate cervid producers for lost income incurred by 
the destruction of the animals. These indemnity payments could provide 
a significant incentive for the owners of these herds to destroy the 
tuberculous animals. Although the indemnity payments will not 
completely cover the monetary losses resulting from whole herd 
depopulation, the payments will significantly reduce losses for deer 
and elk producers.
    The alternative to the interim rule would have been to take no 
action. We did not consider taking no action a reasonable alternative 
because, without the economic incentive of Federal compensation for 
destroyed animals, owners would be more likely to allow tuberculosis 
infection to persist in their herds.

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 rule has been reviewed under Executive Order 12778, 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

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0084.

List of Subjects

9 CFR Part 50

    Animal diseases, Bison, Cattle, Hogs, Indemnity payments, Reporting 
and recordkeeping requirements, Tuberculosis.

9 CFR Part 77

    Animal diseases, Bison, Cattle, Reporting and recordkeeping 
requirements, Transportation, Tuberculosis.
    Accordingly, 9 CFR parts 50 and 77 are amended as follows:

[[Page 25138]]

PART 50--ANIMALS DESTROYED BECAUSE OF TUBERCULOSIS

    1. The authority citation for part 50 continues to read as follows:

    Authority: 21 U.S.C. 111-113, 114, 114a, 114a-1, 120, 121, 125, 
and 134b; 7 CFR 2.22, 2.80, and 371.2(d).


Sec. 50.6  [Amended]

    2. In Sec. 50.6, paragraphs (b) and (e), the words ``the left ear'' 
are removed from the first sentence of each paragraph and the words 
``either ear'' are added in their place.

PART 77--TUBERCULOSIS

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

    Authority: 21 U.S.C. 111, 114, 114a, 115-117, 120, 121, 134b, 
and 134f; 7 CFR 2.22, 2.80, and 371.2(d).


Sec. 77.5  [Amended]

    4. In Sec. 77.5, paragraph (b)(1), the words ``the left ear'' are 
removed and the words ``either ear'' are added in their place.

    Done in Washington, DC, this 14th day of May 1996.
Lonnie J. King,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-12623 Filed 5-17-96; 8:45 am]
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