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###### Department of Agriculture

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

          - 9 CFR Parts 71, 77, 78, 79, and 80
          - [Docket No. APHIS-2008-0077]
          - RIN 0579-AC84

# AGENCY:

Animal and Plant Health Inspection Service, USDA.

# ACTION:

Interim rule and request for comments.

# SUMMARY:

                        We are amending the regulations concerning the interstate                               ( print page 54060)                            movement of animals to limit the use of the animal identification number (AIN) with the 840 prefix to animals born in the United States. In addition, we are extending the restrictions on the removal of official identification devices to include devices applied to imported animals in their countries of origin. We are also requiring that if such a device is lost following importation into the United States, the animal may only be retagged with an official identification device using a numbering system other than an AIN beginning with an 840 prefix. These requirements are necessary to enhance our traceback capabilities for both domestic and imported animals in the event of a disease outbreak.                    

# DATES:

This interim rule is effective September 18, 2008. We will consider all comments that we receive on or before November 17, 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=​APHIS-2008-0077                          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-2008-0077, 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-2008-0077.                    

*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. John Wiemers, Senior Staff Officer, National Animal Identification Staff, VS, APHIS, 2100 S. Lake Storey Rd., Galesburg, IL 61401; (309) 344-1942.

# SUPPLEMENTARY INFORMATION:

## Background

As part of its ongoing efforts to safeguard animal health, the U.S. Department of Agriculture (USDA) initiated implementation of the National Animal Identification System (NAIS) in 2004. The NAIS is a cooperative State-Federal-industry program administered by the USDA's Animal and Plant Health Inspection Service (APHIS).

                    In an interim rule effective and published in the                     **Federal Register**                     on November 8, 2004 (69 FR 64644-64651, Docket No. 04-052-1), we amended the regulations to recognize the animal identification number (AIN) for the identification of individual animals in interstate commerce and State/Federal/industry cooperative disease control and eradication programs, the group/lot identification number (GIN) for the identification of groups or lots of animals, and the premises identification number (PIN) for the identification of premises where animals are managed or held. These numbering systems are key elements in the NAIS.                

                    On July 18, 2007, APHIS adopted that interim rule as a final rule (72 FR 39301-39307, Docket No. 04-052-2) [1]                                          with several changes. Neither the interim rule nor the final rule required the use of the newly recognized numbering systems.                

The regulations established by the November 2004 interim and the July 2007 final rule describe the AIN as a number containing 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. To the extent practical, we anticipate phasing out the USA and manufacturer's code numbering systems as we progress toward full implementation of the NAIS and recognizing as official only the AIN with the 840 prefix.

                    In this interim rule, we are amending the definition of                     *animal identification number (AIN)*                     in §§ 71.1, 77.2, 78.1, 79.1, and 80.1 to limit the use of the AIN with the 840 prefix to animals born in the United States. Limiting the use of the 840 AIN to animals born in the United States will help us to determine the origin of an officially identified domestic animal in a more timely fashion in the event of a disease outbreak. As was the case with the November 2004 interim rule and the July 2007 final rule, the current rulemaking does not require producers to use the 840 AIN for the identification of individual animals. The regulations governing the use of AINs with other prefixes (e.g., USA or a manufacturer's code), and of official eartags using other numbering systems (e.g., the National Uniform Eartagging System, a premises-based number system, etc.) remain unchanged.                

                    The regulations in §§ 71.1, 77.2, 78.1, 79.1, and 80.1 have not contained a definition of the term                     *United States*. However, they all contain a definition of the term                     *State*. To accommodate the change to the AIN definition, we are also adding to each of these sections a definition of                     *United States*. Consistent with the Animal Health Protection Act (7 U.S.C. 8302),                     *United States*                     is defined as “all of the States.”                

Complementing the changes discussed above, we are amending the regulations in § 71.22 to require that if an official identification device applied to an imported animal in its country of origin is lost following importation into the United States, the animal may only be retagged with an official identification device using a numbering system other than an 840 AIN. In addition, we are adding language to § 71.22 to clarify that the restrictions contained therein on the removal of official identification devices extend to the removal of animal identification devices that are officially recognized by APHIS for animals entering the United States from other countries. Although additional official identification may be necessary for imported animals while they are in the United States, the retention of the foreign identification devices is essential for complete and proper traceability. 

In addition to enhancing our traceback capabilities, the regulatory changes contained in this interim rule will aid in the implementation of country of origin labeling (COOL). Under provisions contained in the Farm Bill of 2002, covered commodities, including certain beef, lamb, chicken, goat, and pork cuts and products, will be subject to COOL requirements beginning September 30, 2008. In order for retailers to accurately label these products, producers must provide country of origin information about the livestock from which the products were derived. Animal identification that meets NAIS standards can play a valuable role in the COOL program. Such identification may include both the AIN and the GIN, the latter employing a format that includes a seven-digit PIN.

## Immediate Action

                    Immediate action is necessary to enhance our animal traceback capabilities so that we may better contain animal disease outbreaks.                           ( print page 54061)                        Immediate action will also allow producers to use the 840 AIN for puposes of the COOL program. 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 interim 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.

                    In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. The full analysis may be viewed on the Regulations.gov Web site (see                     **ADDRESSES**                     above for instructions for accessing Regulations.gov) or obtained from the person listed under                     **FOR FURTHER INFORMATION CONTACT**                    .                

This interim rule amends the regulations concerning the interstate movement of animals to limit the use of the AIN with the 840 prefix to animals born in the United States. In addition, we are extending the restrictions on the removal of official identification devices to include devices applied to imported animals in their countries of origin. We are also requiring that if such a device is lost following importation into the United States, the animal may only be retagged with an official identification device using a numbering system other than an AIN beginning with an 840 prefix. These requirements are necessary to enhance our traceback capabilities for both domestic and imported animals in the event of a disease outbreak.

In addition to enhancing our traceback capabilities, this rulemaking also provides a convenient way for U.S. producers and retailers to comply with the COOL program. Under provisions contained in the Farm Bill of 2002, covered commodities, including certain beef, lamb, chicken, goat, and pork cuts and products, will be subject to COOL requirements beginning September 30, 2008. In order for retailers to accurately label these products, producers will need to provide information on the origins of their livestock. Animal identification that meets NAIS standards can play a valuable role in the COOL program. Such identification may include both the AIN and the GIN, the latter employing a format that includes a seven-digit PIN. This rule will allow producers to use the 840 AIN for puposes of the COOL program.

The Regulatory Flexibility Act requires that agencies specifically consider the economic impact of their rules on small entities. Those entities most likely to be affected by the rule are domestic producers of animal eartags and livestock producers. The Small Business Administration (SBA) has established guidelines for determining which establishments are considered small.

                    The SBA small-entity size standard for North American Industry Classification System (NAICS) code 326199, which comprises plastic product manufacturers not otherwise identified, is 500 or fewer employees.[2]                                          According to the 2002 Economic Census, there were 7,892 establishments in this category engaged in the manufacturing of plastic products, with over 492,000 paid employees.[3]                                          We do not currently have enough information to determine how many of these establishments engaged in the manufacture of plastic eartags, or how many have 500 or fewer employees. Limiting use of AINs beginning with the 840 prefix to U.S.-born animals should not affect the costs of producing tags. It may, however, enhance the marketability of these tags, as they can be used for purposes of the COOL program.                

                    In 2006, there were a total of 971,400 cattle operations, 65,540 hog and pig operations, and 69,090 sheep and lamb operations in the United States.[4]                                          The overwhelming majority of these operations are considered small entities according to SBA standards.[5]                                          The interim rule is not expected to have significant economic effects on these livestock establishments, as it is not expected to affect the cost of animal eartags.                

Limiting use of 840 AINs to U.S.-born animals is expected to benefit the livestock sector generally, and producers in particular, by enhancing APHIS' animal disease response capabilities. The interim rule will also provide a readily available, convenient, effective, and cost-effective means of complying with the COOL regulations and meeting requirements for State/Federal animal disease programs and interstate commerce. Use of the AIN with the 840 prefix will not be required, and other animal identification numbering systems currently permitted for use on official eartags, such as the National Uniform Eartagging System and premises-based number systems, will continue to be recognized as official. Therefore, no animals will be required to be retagged due to this rule.

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 rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501*et seq.*).                

      ( print page 54062)    

# List of Subjects

### 9 CFR Part 71

      - Animal diseases
      - Livestock
      - Poultry and poultry products
      - Quarantine
      - Reporting and recordkeeping requirements
      - Transportation

### 9 CFR Part 77

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

### 9 CFR Part 78

      - Animal diseases
      - Bison
      - Cattle
      - Hogs
      - Quarantine
      - Reporting and recordkeeping requirements
      - Transportation

### 9 CFR Part 79

      - Animal diseases
      - Quarantine
      - Sheep
      - Transportation

### 9 CFR Part 80

      - Animal diseases
      - Livestock
      - Transportation

Accordingly, we are amending 9 CFR parts 71, 77, 78, 79, and 80 as follows:

# PART 71—GENERAL PROVISIONS

1. The authority citation for part 71 continues to read as follows: 

Authority:7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.

2. Section 71.1 is amended by revising the definition of *animal identification number (AIN)*                         and by adding a definition of                         *United States*                         to read as follows:                    

§ 71.1

* * * * *

*Animal identification number (AIN).*                             A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. The AIN beginning with the 840 prefix may be used only on animals born in the United States.                        

* * * * *

*United States.*                             All of the States.                        

* * * * *

3. Section 71.22 is revised to read as follows: 

§ 71.22

Official identification devices are intended to provide permanent identification of livestock and to ensure the ability to find the source of animal disease outbreaks. Removal of these devices, including devices applied to imported animals in their countries of origin and recognized by the Administrator as official, is prohibited except at the time of slaughter. If an official identification device is lost and it is necessary to retag an animal with a new official number, every effort should be made to correlate the new official number with the previous official number of the animal. If an official identification device applied to an imported animal in its country of origin is lost following importation into the United States, the animal may only be retagged with an official identification device using a numbering system other than an animal identification number beginning with the 840 prefix.

# PART 77—TUBERCULOSIS

4. 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.

5. Section 77.2 is amended by revising the definition of *animal identification number (AIN)*                         and by adding a definition of                         *United States*                         to read as follows:                    

§ 77.2

* * * * *

*Animal identification number (AIN).*                             A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. The AIN beginning with the 840 prefix may be used only on animals born in the United States.                        

* * * * *

*United States.*                             All of the States.                        

* * * * *

# PART 78—BRUCELLOSIS

6. 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.

7. Section 78.1 is amended by adding “animal identification number (AIN)” and “United States” to the list of terms, by revising the definition of *animal identification number (AIN)*                         to read as follows, and by adding a definition of                         *United States*                         to read as follows:                    

§ 78.1 

* * * * *

*Animal identification number (AIN).*                             A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. The AIN beginning with the 840 prefix may be used only on animals born in the United States.                        

* * * * *

*United States.*                             All of the States.                        

* * * * *

# PART 79—SCRAPIE IN SHEEP AND GOATS

8. The authority citation for part 79 continues to read as follows: 

Authority:7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.

9. Section 79.1 is amended by revising the definition of *animal identification number (AIN)*                         and by adding a definition of                         *United States*                         to read as follows:                    

§ 79.1 

* * * * *

*Animal identification number (AIN).*                             A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. The AIN beginning with the 840 prefix may be used only on animals born in the United States.                        

* * * * *

*United States.*                             All of the States.                        

* * * * *

# PART 80—JOHNE'S DISEASE IN DOMESTIC ANIMALS

10. The authority citation for part 80 continues to read as follows: 

Authority:7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.

11. Section 80.1 is amended by revising the definition of *animal                                   ( print page 54063)                                identification number (AIN)*                         and by adding a definition of                         *United States*                         to read as follows:                    

* * * * *

§ 80.1 

* * * * *

*Animal identification number (AIN).*                             A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. The AIN beginning with the 840 prefix may be used only on animals born in the United States.                        

* * * * *

*United States.*                             All of the States.                        

Done in Washington, DC, this 12th day of September 2008.

Cindy J. Smith,

Administrator, Animal and Plant Health Inspection Service.

# Footnotes

1.                             To view the interim rule, the comments we received, and the subsequent final rule, go to                         *http://www.regulations.gov/​fdmspublic/​component/​main?​main=​DocketDetail&​d=​APHIS-2004-0018.*
        Back to Citation      

2.                             Table of Size Standards based on NAICS 2002. Washington, DC: U.S. Small Business Administration, effective October 1, 2007. Note: NAICS code 326199 comprises establishments primarily engaged in manufacturing plastic products (except film, sheet, bags, profile shapes, pipes, pipe fittings, laminates, foam products, bottles, plumbing fixtures, and resilient floor coverings).                    
        Back to Citation      

3.                                                     *2002 Economic Census—Manufacturing Series.*                         Washington, DC: U.S. Census Bureau, December 2004.                    
        Back to Citation      

4.                             USDA-National Agricultural Statistics Service,                         *2007 Agricultural Statistics, Tables 7-18, 7-26, and 7-53.*                         Washington, DC: National Agricultural Statistics Service.                    
        Back to Citation      

5.                             The small entity definition for livestock producers (NAICS codes: 112111, 112120, 112210, 112410, and 112420) is one that has $750,000 or less in annual receipts, according to the SBA's Table of Size Standards.                    
        Back to Citation      

[FR Doc. E8-21787 Filed 9-17-08; 8:45 am]

BILLING CODE 3410-34-P