Federal Register / Vol. 73, No. 171 / Wednesday, September 3, 2008 / Rules and Regulations 51353 

factor used in the Class III and Class IV 

product-pricing formulas. 

On Friday, August 15, 2008, a lawsuit 

was filed in the District Court for the 

District of Columbia requesting that a 

temporary restraining order be issued by 

the court until a preliminary injunction 

hearing could be held as part of the prehearing process. USDA determined that 

it was in the best interest of the dairy 

industry to delay implementation of the 

Final Rule one month until October 1, 

2008. Delaying implementation allows 

sufficient time for a preliminary 

injunction hearing to be held. 

The revised manufacturing 

allowances and butterfat yield factor 

will be used in computing the October 

2008 Federal order minimum advance 

Class I and Class II prices and pricing 

factors to be announced on September 

19, 2008 unless a court order directs 

otherwise. The revised manufacturing 

allowances and butterfat yield factor of 

the Interim Final Rule will be used to 

compute minimum Federal order Class 

III and Class IV prices for October 2008 

and in the announcement of advanced 

prices and pricing factors thereafter. 

Authority: 7 U.S.C. 601–674, and 7253. 

Dated: August 28, 2008. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E8–20391 Filed 8–28–08; 4:15 pm] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Part 78 

[Docket No. APHIS–2008–0086] 

Brucellosis in Cattle; State and Area 

Classifications; Montana 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Interim rule and request for 

comments. 

SUMMARY: We are amending the 

brucellosis regulations concerning 

interstate movement of cattle by 

changing the classification of Montana 

from Class Free to Class A. We have 

determined that Montana no longer 

meets the standards for Class Free 

status. This action is necessary to 

prevent the interstate spread of 

brucellosis. 

DATES: This interim rule is effective 

September 3, 2008. We will consider all 

comments that we receive on or before 

November 3, 2008. 

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=APHIS2008-0086 to submit or view comments 

and to view supporting and related 

materials available electronically. 

• Postal Mail/Commercial Delivery: 

Please send two copies of your comment 

to Docket No. APHIS–2008–0086, 

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– 

2008–0086. 

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. 

Debbi A. Donch, National Brucellosis 

Epidemiologist, Ruminant Health 

Programs Staff, National Center for 

Animal Health Programs, VS, APHIS, 

4700 River Road Unit 43, Riverdale, MD 

20737–1231; (301) 734–5952. 

SUPPLEMENTARY INFORMATION: 

Background 

Brucellosis is a contagious disease, 

caused by bacteria of the genus Brucella, 

that affects both animals and humans. 

The disease mainly affects cattle, bison, 

and swine; however, goats, sheep, 

horses, and humans are susceptible as 

well. In its principal animal hosts, it 

causes loss of young through 

spontaneous abortion or birth of weak 

offspring, reduced milk production, and 

infertility. There is no economically 

feasible treatment for brucellosis in 

livestock. In humans, brucellosis 

initially causes flu-like symptoms, but 

the disease may develop into a variety 

of chronic conditions, including 

arthritis. Humans can be treated for 

brucellosis with antibiotics. 

The brucellosis regulations, contained 

in 9 CFR part 78 (referred to below as 

the regulations), provide a system for 

classifying States or portions of States 

according to the rate of Brucella 

infection present and the general 

effectiveness of a brucellosis control and 

eradication program. The classifications 

are Class Free, Class A, Class B, and 

Class C. States or areas that do not meet 

the minimum standards for Class C are 

required to be placed under Federal 

quarantine. 

The brucellosis Class Free 

classification is based on a finding of no 

known brucellosis in cattle for the 12 

months preceding classification as Class 

Free. The Class C classification is for 

States or areas with the highest rate of 

brucellosis. Class B and Class A fall 

between these two extremes. 

Restrictions on moving cattle interstate 

become less stringent as a State 

approaches or achieves Class Free 

status. 

The standards for the different 

classifications of States or areas entail 

(1) maintaining a cattle herd infection 

rate not to exceed a stated level during 

12 consecutive months; (2) tracing back 

to the farm of origin and successfully 

closing a stated percent of all brucellosis 

reactors found in the course of Market 

Cattle Identification (MCI) testing; (3) 

maintaining a surveillance system that 

includes testing of dairy herds, 

participation of all recognized 

slaughtering establishments in the MCI 

program, identification and monitoring 

of herds at high risk of infection 

(including herds adjacent to infected 

herds and herds from which infected 

animals have been sold or received), 

and having an individual herd plan in 

effect within a stated number of days 

after the herd owner is notified of the 

finding of brucellosis in a herd he or she 

owns; and (4) maintaining minimum 

procedural standards for administering 

the program. 

If a single herd in a Class Free State 

is found to be affected with brucellosis, 

the State may retain its Class Free status 

if it meets the conditions described in 

paragraph (b)(4) of the definition of 

Class Free State or area in § 78.1. A 

State may retain its status in this 

manner only once during any 2-year 

period. The following conditions must 

be satisfied within 60 days of the 

identification of the infected animal: 

1. The affected herd must be 

immediately quarantined, tested for 

brucellosis, and depopulated; and 

2. An epidemiological investigation 

must be performed and the investigation 

must confirm that brucellosis has not 

spread from the affected herd. All herds 

on premises adjacent to the affected 

herd (adjacent herds), all herds from 

which animals may have been brought 

into the affected herd (source herds), 

and all herds that may have had contact 

with or accepted animals from the 

affected herd (contact herds) must be 


yshivers on PROD1PC62 with RULES
51354 Federal Register / Vol. 73, No. 171 / Wednesday, September 3, 2008 / Rules and Regulations 

1 Donch, Debra. National Brucellosis 

Epidemiologist, USDA/APHIS/Veterinary Services. 

Information confirmed by Dr. Bret Thompson, 

Veterinary Medical Officer in Montana. Personal 

communication 7/31/08. 

2Montana Department of Livestock. Testing 

Requirements. 7/28/08. States include California, 

Colorado, Georgia, Idaho, Kansas, Nebraska, North 

Dakota, South Dakota, Washington, and Wyoming. 

http://liv.mt.gov/Brucellosis/index.asp. 

3Economic Research Service Data Sets. Interstate 

Livestock Movements: State-to-State Flows. 

Compiled in 2001 from State veterinary certificates. 

http://www.ers.usda.gov/Data/ 

InterstateLivestockMovements/View.asp. No data 

were listed for many States, including the western 

States of Arizona, Nebraska, New Mexico, 

Oklahoma, Utah, or Washington. 

4 (2.4 million head)(0.33)($7.50 per head) = $5.9 

million. (2.4 million head)(0.33)($15.00 per head) = 

$11.9 million. 

5APHIS/USDA. ‘‘Facts About Brucellosis.’’ 

Animal Health, Brucellosis Disease Information. P. 

2. http://www.aphis.usda.gov/animal_health/ 

epidemiologically investigated, and 

each of those herds must be placed 

under an approved individual herd 

plan. If the investigating epidemiologist 

determines that a herd blood test for a 

particular adjacent herd, source herd, or 

contact herd is not warranted, the 

epidemiologist must include that 

determination, and the reasons 

supporting it, in the individual herd 

plan. 

After the close of the 60-day period 

following the identification of the 

infected animal, the Animal and Plant 

Health Inspection Service (APHIS) will 

conduct a review to confirm that the 

requirements have been satisfied and 

that the State is in compliance with all 

other applicable provisions. 

Prior to the publication of this interim 

rule, Montana was classified as a Class 

Free State. On May 18, 2007, we 

confirmed the discovery of a 

brucellosis-affected herd in Montana. In 

accordance with § 78.1, the State took 

immediate measures to maintain its 

Class Free status. However, on June 9, 

2008, another brucellosis-affected herd 

was confirmed. With the discovery of 

the second affected herd within 2 years, 

Montana no longer meets the standards 

for Class Free status. Therefore, we are 

removing Montana from the list of Class 

Free States or areas in § 78.41(a) and 

adding it to the list of Class A States or 

areas in § 78.41(b). 

To attain and maintain Class A status, 

a State or area must (1) not exceed a 

cattle herd infection rate, due to field 

strain Brucella abortus, of 0.25 percent 

or 2.5 herds per 1,000 based on the 

number of reactors found within the 

State during any 12 consecutive months, 

except in States with 10,000 or fewer 

herds; (2) trace to the farm of origin at 

least 90 percent of all brucellosis 

reactors found in the course of MCI 

testing; (3) successfully close at least 95 

percent of the MCI reactor cases traced 

to the farm of origin during the 12 

consecutive month period immediately 

prior to the most recent anniversary of 

the date the State or area was classified 

Class A; and (4) have a specified 

surveillance system, as described above, 

including an approved individual herd 

plan in effect within 15 days of locating 

a source herd or recipient herd. After 

reviewing the brucellosis program 

records for Montana, we have 

concluded that this State meets the 

standards for Class A status. 

Emergency Action 

This rulemaking is necessary on an 

emergency basis to prevent the 

interstate spread of brucellosis. 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 rule 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. 

We are amending the brucellosis 

regulations concerning interstate 

movement of cattle by changing the 

classification of Montana from Class 

Free to Class A. We have determined 

that Montana no longer meets the 

standards for Class Free status. This 

action is necessary to prevent the 

interstate spread of brucellosis. 

A reclassification from Class Free to 

Class A status with respect to 

brucellosis will result in movement 

restrictions. Specifically, all bovine 

animals moved interstate, except those 

moving directly to slaughter or to 

quarantined feedlots, must test negative 

to a brucellosis test 30 days prior to 

interstate movement. 

Costs of brucellosis testing depend on 

a number of factors such as the location 

of the herd, veterinarian fees (subject to 

the veterinarian’s discretion), and the 

laboratory blood test fee. Private 

veterinary practitioners in Montana 

charge an average of $6.00 per head for 

the test, including shipping and testing 

of the blood sample. In addition, there 

is a ‘‘farm call’’ charge that can range 

from $20 to over $200, depending on the 

distance traveled by the veterinarian 

and the number of animals tested. Based 

on these charges, the estimated average 

cost for brucellosis testing is between 

$7.50 and $15 per head.1 Considering 

the average value per head of cattle in 

Montana was $1,050 in 2007, costs to 

producers associated with brucellosis 

testing are expected to range between 

0.7 and 1.4 percent of the value of the 

cattle moved interstate. Costs for any 

single herd owner will depend upon the 

volume of non-slaughter cattle that the 

owner moves interstate. Many 

operations are already bearing these 

testing costs; since June 11, 2008, 10 

surrounding States have issued 

movement requirements in response to 

the Montana brucellosis findings that 

include a negative brucellosis test 30 

days prior to movement.2

In 2001, about 818,000 head of cattle 

(excluding ones destined for immediate 

slaughter) were moved out of Montana 

to 22 other States, with the majority 

shipped to Colorado, Iowa, Kansas, 

Minnesota, South Dakota and 

Wyoming.3 These cattle represented 

about one-third of Montana’s total 2001 

cattle inventory. Assuming that a 

similar percentage currently moves 

interstate (other than for immediate 

slaughter or to quarantined feedlots), the 

estimated direct industry cost to 

Montana livestock operations of the 

State’s reclassification from Class Free 

to Class A could range between 

approximately $6 million and $12 

million per year.4 The upper value is 

less than 0.5 percent of the total value 

of the Montana cattle herd. 

Additionally, Montana sellers of nonslaughter cattle to other States may face 

a price discount because of the State’s 

loss of Class Free status. Various market 

factors influencing the price of cattle 

make it difficult to predict the size of 

the price discount. 

Despite the costs incurred by Montana 

operations, the overall economic effect 

of this action will be positive in 

preventing brucellosis from spreading to 

other States. Studies indicate the costs 

of producing beef and milk could 

increase by an estimated $80 million 

annually in less than 10 years if 

movement restrictions and other 

requirements of the Cooperative State– 

Federal Brucellosis Eradication Program 

were discontinued.5


yshivers on PROD1PC62 with RULES
Federal Register / Vol. 73, No. 171 / Wednesday, September 3, 2008 / Rules and Regulations 51355 

animal_diseases/brucellosis/downloads/brucfacts.pdf. Accessed 8/4/08. 6National Agricultural Statistics Service/U.S. 

Department of Agriculture (USDA). Agricultural 

Statistics 2007. http://www.nass.usda.gov/ 

Statistics_by_State/Montana/index.asp. 

Impact on Small Entities 

In 2007, there were 12,400 cattle 

operations in Montana with a total 

inventory of approximately 2.4 million 

head. Industry statistics indicate that 

the average value of cattle in Montana 

for 2007 was $1,050 per head, yielding 

a total estimated cattle herd value of 

$2.52 billion.6

Based on data from the 2002 Census 

of Agriculture and Small Business 

Administration (SBA) guidelines, we 

expect a majority of operations affected 

by the interim rule will be small 

entities. Entities that comprise the North 

American Industry Classification 

System (NAICS) categories of beef cattle 

ranching and farming (NAICS 112111) 

and dairy cattle and milk production 

(NAICS 112120) are considered small if 

their total annual receipts do not exceed 

$750,000. The 2002 Census of 

Agriculture indicates that 99 percent of 

entities within NAICS 112111, and 89 

percent of entities within NAICS 

112120, earned less than $500,000 

annually. Most, if not all, of the beef and 

dairy herds in Montana are considered 

small entities. 

The Animal Health Protection Act (7 

U.S.C. 8301 et seq.) provides the 

statutory authority for APHIS to carry 

out operations and measures to detect, 

control, and eradicate brucellosis. While 

this change in status will result in 

additional requirements for interstate 

movement of cattle for Montana 

producers, the benefits of the restriction 

in preventing the spread of brucellosis 

to other parts of the United States 

outweighs the additional costs of 

brucellosis testing. APHIS does not 

expect additional costs to have a 

significant impact on a substantial 

number of small entities. This 

rulemaking is necessary on an 

emergency basis to prevent the 

interstate spread of brucellosis. 

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 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 78 

Animal diseases, Bison, Cattle, Hogs, 

Quarantine, Reporting and 

recordkeeping requirements, 

Transportation. 

■ Accordingly, we are amending 9 CFR 

part 78 as follows: 

PART 78—BRUCELLOSIS 

■ 1. The authority citation for part 78 

continues to read as follows: 

Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22, 

2.80, and 371.4. 

§ 78.41 [Amended] 

■ 2. Section 78.41 is amended as 

follows: 

■ a. In paragraph (a), by removing the 

word ‘‘Montana,’’. 

■ b. In paragraph (b), by removing the 

word ‘‘None’’ and adding the word 

‘‘Montana’’ in its place. 

Done in Washington, DC, this 27th day of 

August 2008. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. E8–20374 Filed 9–2–08; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Food Safety and Inspection Service 

9 CFR Part 430 

[Docket No. 2007–0046] 

Control of Listeria monocytogenes in 

Ready-To-Eat Meat and Poultry 

Products 

AGENCY: Food Safety and Inspection 

Service (FSIS), USDA. 

ACTION: Interim final rule; schedule for 

review under section 610 requirements. 

SUMMARY: The Food Safety and 

Inspection Service (FSIS) is announcing 

that it did not conduct a review of the 

interim final rule, Control of Listeria 

monocytogenes in Ready-to-Eat Meat 

and Poultry Products, in 2007 as stated 

in its amended schedule plan for 

reviewing regulations under Section 610 

of the Regulatory Flexibility Act, as 

amended. The Agency has decided to 

wait until it publishes a final rule in this 

proceeding before amending its plan so 

it can conduct a review of that final rule 

instead of the interim final rule. 

FOR FURTHER INFORMATION CONTACT: For 

further information contact Rachel 

Edelstein, Director, Policy Issuances 

Division, FSIS, U.S. Department of 

Agriculture, 1400 Independence 

Avenue, SW., Room 3538, Washington, 

DC 20250–3700, (202) 202/720–5627. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 610 of the Regulatory 

Flexibility Act (RFA), as amended (5 

U.S.C. 601–612), requires that all 

Federal agencies review any regulations 

that have been identified as having a 

significant economic impact upon a 

substantial number of small entities as 

a means to determine whether the 

associated impact can be minimized by 

considering the following factors: (1) 

The continued need for the rule; (2) the 

nature of the complaints or comments 

received concerning the rule from the 

public; (3) the complexity of the rule; (4) 

the extent to which the rule overlaps, 

duplicates, or conflicts with other 

Federal rules; and (5) the length of time 

since the rule has been initially 

evaluated or the degree to which 

technology, economic conditions, or 

other factors have changed in the area 

affected by the rule. 

On January 28, 2005, FSIS published 

an amended scheduling plan in the 

Federal Register (70 FR 4047) for 

reviewing regulations. This plan 

scheduled a review in 2007 of the 

interim final rule, Control of Listeria 

monocytogenes in Ready-to-Eat Meat 

and Poultry Products (68 FR 34208; June 

6, 2003). Because FSIS intends to issue 

a final rule in this rulemaking, it does 

not plan to review the interim final rule. 

Once the Agency publishes the final 

rule, it will amend its plan so it will be 

able to properly assess the impact of the 

final rule. 

Additional Public Notification 

Public awareness of all segments of 

rulemaking and policy development is 

important. Consequently, in an effort to 

ensure that the public and in particular 

minorities, women, and persons with 

disabilities, are aware of this notice, 

FSIS will announce it on-line through 

the FSIS Web page located at http://


yshivers on PROD1PC62 with RULES