[Federal Register: March 31, 2009 (Volume 74, Number 60)] [Proposed Rules] [Page 14495-14506] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr31mr09-26]
======================================================================== Proposed Rules Federal Register ________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules.
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 55 and 81
[Docket No. 00-108-7] RIN 0579-AB35
Chronic Wasting Disease Herd Certification Program and Interstate Movement of Farmed or Captive Deer, Elk, and Moose
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
SUMMARY: We are proposing further amendments that would establish a herd certification program to eliminate chronic wasting disease from farmed or captive cervids in the United States. Under the 2006 Chronic Wasting Disease (CWD) rule, participating deer, elk, and moose herds would have to follow CWD Herd Certification Program requirements for animal identification, testing, herd management, and movement of animals into and from herds. This document proposes additional changes to the program regarding recognition of State bans on the entry of farmed or captive cervids for reasons unrelated to CWD, the number of years an animal must be monitored for CWD before it may move interstate, interstate movement of cervids that originated from herds in proximity to a CWD outbreak, herd inventory procedures, and several other matters. These actions are intended to help eliminate CWD from the farmed or captive cervid herds in the United States.
DATES: We will consider all comments that we receive on or before June 1, 2009.
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-2006-0118
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. 00-108-7, 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. 00-108-7.
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. Dean E. Goeldner, Senior Staff Veterinarian, Ruminant Health Programs, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1231; (301) 734-4916.
Chronic wasting disease (CWD) is a transmissible spongiform encephalopathy (TSE) of cervids (members of Cervidae, the deer family) that, as of October, 2008, has been found only in wild and captive animals in North America and in captive animals in the Republic of Korea. First recognized as a clinical ``wasting'' syndrome in 1967, the disease is typified by chronic weight loss leading to death. There is no known relationship between CWD and any other TSE of animals or people. Species known to be susceptible to CWD via natural routes of transmission include Rocky Mountain elk, mule deer, white-tailed deer, black-tailed deer, and moose.
In the United States, CWD has been confirmed in free-ranging deer and elk in Colorado, Illinois, Kansas, Nebraska, New Mexico, New York, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming, and, as of October 2008, in 32 farmed elk herds and 11 farmed or captive white- tailed deer herds in Colorado, Kansas, Michigan, Minnesota, Montana, Nebraska, New York, Oklahoma, South Dakota, and Wisconsin. The disease was first detected in U.S. farmed elk in 1997. It was also diagnosed in a wild moose in Colorado in 2005.
Under the Animal Health Protection Act (7 U.S.C. 8301 et seq.), the Secretary of Agriculture has the authority to issue orders and promulgate regulations to prevent the introduction into the United States and the dissemination within the United States of any pest or disease of livestock. The Animal and Plant Health Inspection Service's (APHIS') regulations in 9 CFR subchapter B govern cooperative programs to control and eradicate communicable diseases of livestock.
On July 21, 2006, we published a final rule in the Federal Register (71 FR 41682, Docket No. 00-108-3; ``the CWD final rule'') amending 9 CFR subchapter B by establishing regulations in part 55 for a Chronic Wasting Disease Herd Certification Program to help eliminate chronic wasting disease (CWD) from the farmed or captive cervid herds in the United States. Under that rule, owners of deer, elk, and moose herds who choose to participate would have to follow the program requirements of a cooperative State-Federal program for animal identification, testing, herd management, and movement of animals into and from herds. The CWD final rule also amended 9 CFR subchapter C by establishing a new part 81 containing interstate movement requirements to prevent the spread of CWD.
After publication of the CWD final rule, but before its effective date, APHIS received three petitions requesting reconsideration of several requirements of the rule. On September 8, 2006, we published a notice in the Federal Register (71 FR 52983, Docket No. 00-108-4) that delayed the effective date of the CWD final rule while APHIS considered those petitions. On November 3, 2006, we published another notice in the Federal Register (71 FR 64650-64651, Docket No. 00-108-5) that described the nature of the petitions and made the petitions available for public review and comment, with a comment period closing date of December 4, 2006. We subsequently extended that comment
period until January 3, 2007, in a Federal Register notice published on November 21, 2006 (71 FR 67313, Docket No. 00-108-6).
We received 77 comments by that date. They were from cervid producer associations, individual cervid producers, State animal health agencies, State wildlife agencies, and others.
We have carefully considered the merits of the petitions and of the public comments received in response to them. We believe that the petitioners and commenters identified several areas where the CWD final rule could be more effective or less burdensome, and we believe the CWD final rule could be improved by making several changes to its requirements. We are therefore proposing certain changes to the CWD final rule, described below. We plan to withdraw the 2006 CWD final rule published on July 21, 2006 and issue a revised final rule based on this proposal and on the CWD final rule, after evaluating public comments on this proposal.
We received 77 comments by that date. They were from cervid producer associations, individual cervid producers, State animal health agencies, State wildlife agencies, and others. We have carefully considered the merits of the petitions and of the public comments received in response to them. We believe that the petitioners and commenters identified several areas where the CWD final rule could be more effective or less burdensome, and we believe the CWD final rule could be improved by making several changes to its requirements. We are therefore proposing certain changes to the CWD final rule, described below. We plan to withdraw the 2006 CWD final rule published on July 21, 2006 and issue a revised final rule based on this proposal and on the CWD final rule, after evaluating public comments on this proposal.
Reconciling Federal and State Requirements for the Interstate Movement of Captive Cervids
One goal of the CWD final rule was to provide a consistent, nationwide standard for the interstate movement of cervids, when such animals are allowed to move in interstate commerce. For that reason, the CWD final rule provided a single set of CWD requirements to follow when moving cervids interstate. These requirements, developed with input from States and producers, were meant to standardize a variety of differing CWD requirements and restrictions imposed by States that regulate the entry of cervids from other States. For example, different States have different requirements for how long a cervid must have been in a herd subject to CWD monitoring in order to move, and different requirements for the type of animal identification required for cervids moving interstate. APHIS continues to believe that the Federal CWD regulations should provide a consistent, nationwide set of requirements designed to address CWD risk for cervids that move interstate. Where the Federal CWD final rule establishes a standard for a particular aspect of interstate movement of cervids--identification requirements, for example--the requirement in the Federal CWD final rule will preempt any inconsistent State requirement. However, as the petitions and several comments on the petitions stated, the CWD final rule did not clearly resolve the issue of whether a State has authority to ban the movement of any farmed or captive cervids into the State due to reasons other than CWD risks. APHIS has sought and received further information from States on the nature of their State CWD regulations and the reasons States have determined such requirements to be necessary. In States that allow farmed or captive cervids from other States to enter under restrictions, rather than prohibiting their entry entirely, we found that the purpose of the CWD restrictions and the methods they employed were similar to the purpose and methods of the CWD final rule. In almost all cases, we believe that the requirements in the Federal-State cooperative CWD final rule will achieve the State goal of allowing interstate movement of farmed or captive cervids under conditions sufficient to prevent the spread of CWD. In one case, discussed in the next section of this document titled ``Monitoring Period Required to Move Cervids Interstate,'' we believe the ``monitoring period'' requirement currently employed by some States is superior to the requirement in the CWD final rule, and accordingly we propose to revise the CWD final rule with respect to the length of time a farmed or captive cervid moved interstate must have spent in an approved CWD herd certification program, and thus the length of time it has been subject to monitoring for CWD and other herd requirements. However, in the course of considering the petitions and comments on them, APHIS has found that a number of States prohibit the entry of farmed or captive cervids for a variety of reasons, and to control a variety of risks, which are unrelated to CWD. State-imposed bans on the movement of cervids that are unrelated to CWD risks will not be affected by the CWD final rule. While Federal CWD requirements preempt State CWD requirements when interstate movement of cervids is allowed, we do not believe it is necessary to preempt State laws or regulations that prohibit the entry of farmed or captive cervids for other reasons when States have articulated sound reasons for such bans. This would include a State that bans entry of cervids because the State does not have or is phasing out a farmed or captive cervid industry and States that impose restrictions to address diseases for which APHIS does not prohibit or restrict interstate movement. Some States that ban the entry of farmed or captive cervids have cited concerns about the potential spread of CWD, brucellosis, and tuberculosis as one reason for the bans. This is not, in the agency's view, a persuasive reason to maintain a ban, because Federal regulations\1\ are specifically designed to allow the interstate movement of cervids without disseminating these diseases. We believe that the proposed Federal CWD requirements would be effective and, if finalized, would preempt conflicting State requirements. However, States also cite other reasons for their bans on the entry of farmed or captive cervids, such as risks from a number of diseases and parasites associated with cervids. Excluding examples for which there are already mandatory Federal testing or interstate movement requirements, the diseases and parasites that support the need for a ban in some States include epizootic hemorrhagic disease/bluetongue, Johne's disease, malignant catarrhal fever, and the meningeal worm (Parelaphostrongylus tenuis). States also base cervid bans on concerns that farmed or captive cervids could contain undesirable gene sequences that could be introduced into wild cervid populations if the cervids escape captivity. These States noted that maintaining the genetic purity of their native elk and deer populations was important to sportsmen and natural resource interests. More generally, States with bans cited concerns that escaped farmed or captive cervids would compete with wild populations for food and habitat. Some States also cited laws making it illegal to hold in captivity certain species or breeds of cervids covered by the CWD final rule. Some States imposed a ban partly to discourage high-fence trophy hunting operations that depend on continual restocking from out-of State sources. Finally, some States cited environmental concerns, including ecosystem degradation resulting from cervids maintained in captivity or escaped cervids.
\1\ For interstate movement requirements for cervids and other animals with respect to these diseases, see 9 CFR part 77 for tuberculosis, 9 CFR part 78 for brucellosis, and 9 CFR part 81 for CWD.
APHIS has concluded that many of the above concerns are substantive and that we should propose a way to accommodate State interests in these areas. APHIS believes that we can best address the concerns of States that have imposed a ban on the entry of farmed or captive cervids for reasons unrelated to CWD by changing the CWD final rule to recognize such a ban for those States. Therefore, we propose to add a new Sec. 81.5 to the CWD final rule to clarify that state laws and regulations prohibiting the entry of farmed or captive cervids for reasons unrelated to CWD are not preempted by this part.
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