[Federal Register Volume 73, Number 177 (Thursday, September 11, 2008)]
[Rules and Regulations]
[Pages 52775-52777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21117]



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Rules and Regulations
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Federal Register / Vol. 73, No. 177 / Thursday, September 11, 2008 / 
Rules and Regulations

[[Page 52775]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 77

[Docket No. APHIS-2008-0068]


Tuberculosis; Amend the Status of New Mexico From Accredited Free 
to Modified Accredited Advanced

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the regulations to remove a zone in New Mexico 
from the list of accredited-free zones for bovine tuberculosis and 
reclassify the entire State as modified accredited advanced. Because 
two affected herds have been detected in New Mexico's accredited-free 
zone since May 2007, the zone no longer meets our requirements for 
accredited-free status. This action is necessary to reduce the 
likelihood of the spread of bovine tuberculosis within the United 
States.

DATES: This interim rule is effective September 11, 2008. We will 
consider all comments that we receive on or before November 10, 2008.
    Compliance Date: The date for complying with certain requirements 
of 9 CFR 77.10 for sexually intact heifers, steers, and spayed heifers 
moving interstate from New Mexico is delayed until further notice (see 
``Delay in Compliance'' under SUPPLEMENTARY INFORMATION). The 
compliance date for all other provisions in 9 CFR part 77 applicable to 
the interstate movement of cattle and bison from the State of New 
Mexico is September 11, 2008.

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-2008-0068 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-2008-0068, 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-2008-0068.
    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 Bovine Tuberculosis Eradication Program for 
tuberculosis in livestock.
    In carrying out the national eradication program, the Animal and 
Plant Health Inspection Service 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 and in the Bovine Tuberculosis Eradication Uniform Methods and 
Rules, 1999, which is incorporated by reference into the regulations.
    Section 77.7 of the regulations lists accredited-free States and 
zones and also contains requirements for retention of accredited-free 
status. Under Sec.  77.7(c), if two or more affected herds are detected 
in an accredited-free State or zone within a 48-month period, that 
State or zone will be removed from the list of accredited-free States 
or zones and will be reclassified as modified accredited advanced.
    The State of New Mexico has been divided into two zones for the 
purpose of tuberculosis status classification, with one listed in Sec.  
77.7(b)(2) as accredited-free and a second listed in Sec.  77.9(b)(2) 
as modified accredited advanced. New Mexico has had an ongoing 
investigation to detect bovine tuberculosis in domestic cattle herds 
since April 2007, when an epidemiological investigation of a 
tuberculosis-positive cow found through slaughter surveillance 
confirmed an affected dairy herd in the accredited-free zone. Recently, 
a second affected herd was identified in the same zone. The finding of 
the second affected herd within a 48 month period means that the zone 
no longer meets the requirements for accredited-free status. Therefore, 
we are reclassifying the entire State of New Mexico as modified 
accredited advanced. This action is necessary to reduce the likelihood 
of the spread of tuberculosis within the United States.
    As a result of this action, cattle or bison being moved interstate 
from

[[Page 52776]]

anywhere in New Mexico will now have to meet the testing requirements 
that apply to animals from modified accredited advanced States or 
zones. Under the regulations in Sec.  77.10, cattle or bison that 
originate in a modified accredited advanced State or zone, and are not 
known to be infected with or exposed to tuberculosis, may be moved 
interstate only under one of the following conditions:
    <bullet> The cattle or bison are moved directly to slaughter at an 
approved slaughtering establishment (Sec.  77.10(a));
    <bullet> The cattle or bison are sexually intact heifers moved to 
an approved feedlot, or are steers or spayed heifers; and are either 
officially identified or identified by premises of origin 
identification (Sec.  77.10(b));
    <bullet> The cattle or bison are from an accredited herd and are 
accompanied by a certificate stating that the accredited herd completed 
the testing necessary for accredited status with negative results 
within 1 year prior to the date of movement (Sec.  77.10(c)); or
    <bullet> The cattle or bison are sexually intact animals, are not 
from an accredited herd, are officially identified, and are accompanied 
by a certificate stating that they were negative to an official 
tuberculin test conducted within 60 days prior to the date of movement 
(Sec.  77.10(d)).

Delay in Compliance

    Previous rulemaking changing the tuberculosis classifications of 
the States of Texas, California, New Mexico, and Minnesota from 
accredited free to modified accredited advanced allowed for delayed 
compliance with certain provisions of Sec.  77.10. The interim rule 
that amended the classification of Texas was effective June 3, 2002, 
and published in the Federal Register on June 6, 2002 (67 FR 38841-
38844, Docket No. 02-021-1); in a document published in the Federal 
Register on December 31, 2002, the date by which Texas had to comply 
with certain provisions of Sec.  77.10 was extended from January 1, 
2003, to September 30, 2003 (67 FR 79836-79837, Docket No. 02-021-3). 
The interim rule that amended the classification of California was 
effective and published in the Federal Register on April 25, 2003 (68 
FR 20333-20336, Docket No. 03-005-1). The interim rule that amended the 
classification of New Mexico was effective and published in the Federal 
Register on July 24, 2003 (68 FR 43618-43621, Docket No. 03-044-1).\1\ 
The 2003 interim rules changing the statuses of California and New 
Mexico from accredited-free to modified accredited advanced also 
allowed for a delay in the compliance date for certain provisions of 
Sec.  77.10 until September 30, 2003.
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    \1\ New Mexico's accredited-free zone was established in a 
subsequent interim rule, effective and published in the Federal 
Register on July 22, 2005 (70 FR 42259-42261, Docket No. 04-068-1).
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    The specific provisions of Sec.  77.10 for which we delayed the 
compliance date were as follows:
    <bullet> The identification of sexually intact heifers moving to 
approved feedlots and steers and spayed heifers moving to any 
destination (Sec.  77.10(b));
    <bullet> The identification requirements for sexually intact 
heifers moving to feedlots that are not approved feedlots (Sec.  
77.10(d)); and
    <bullet> Because identification is required for certification, the 
certification requirements for sexually intact heifers moving to 
unapproved feedlots (Sec.  77.10(d)).
    Initially, we had delayed the date of compliance with these 
requirements for the State of Texas until September 30, 2003, for two 
reasons. First, the size of the cattle industry in Texas necessitated 
additional time to implement the identification requirements of the 
regulations. Second, some cattle that had begun moving through channels 
prior to the change in Texas' tuberculosis status would not have been 
identified at their premises of origin. The compliance date was delayed 
for California and New Mexico to provide equitable treatment for 
producers in those States.
    Based on the comments that we received on the interim rule for 
Texas, we concluded that the tuberculosis risk associated with the 
movement of nonbreeding cattle from modified accredited advanced States 
or zones through feeder channels to slaughter is low and that 
identification requirements for certain cattle destined for slaughter 
may be unnecessary. Therefore, on March 22, 2004, we published in the 
Federal Register (69 FR 13218-13219, Docket No. 03-072-2) an interim 
rule further delaying the date for compliance with the identification 
and certification requirements of Sec.  77.10(b) and (d) for 
nonbreeding cattle from the States of Texas, California, and New 
Mexico, until further notice. The interim rule published in the Federal 
Register on January 30, 2006 (71 FR 4808-4810, Docket No. APHIS-2006-
0004) changing the status of Minnesota from accredited-free to modified 
accredited advanced also allowed for a delay in the compliance date for 
certain provisions of Sec.  77.10 until further notice. This delay of 
the date for compliance with the provisions of Sec.  77.10 listed above 
also applies to the current rulemaking changing the tuberculosis status 
of a zone in New Mexico from accredited-free to modified accredited 
advanced.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
spread of bovine tuberculosis within the United States. 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.
    This emergency situation makes timely compliance with section 603 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) impracticable. 
We are currently assessing the potential economic effects of this 
action on small entities. Based on that assessment, we will either 
certify that the rule will not have a significant economic impact on a 
substantial number of small entities or publish a regulatory 
flexibility analysis.

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

[[Page 52777]]

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.


Sec.  77.7  [Amended]

0
2. Section 77.7, paragraph (b), is amended by removing the paragraph 
number ``(1)'' and by removing paragraph (b)(2).


Sec.  77.9  [Amended]

0
3. Section 77.9 is amended as follows:
0
a. In paragraph (a), by removing the word ``None'' and adding the words 
``New Mexico'' in its place.
0
b. In paragraph (b), by removing the paragraph number ``(1)'' and by 
removing paragraph (b)(2).

    Done in Washington, DC, this 5th day of September 2008.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E8-21117 Filed 9-10-08; 8:45 am]
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