Quarantine Facilities for Birds

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 92

[Docket No. 92-162-2]

RIN 0579-AA57

Quarantine Facilities for Birds

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are revising the bird importation regulations to allow

imported birds to be quarantined upon arrival in the United States at

any privately owned bird quarantine facility located near an

international airport or land-border port served by U.S. Customs,

provided the facility meets the standards of the Animal and Plant

Health Inspection Service. The importation system that allowed bird

importations through a limited number of ``approved quarantine

facilities'' lacked flexibility, and no longer appears necessary.

We are also establishing standards for incubator/hatcher areas and

bird holding areas in quarantine facilities for hatching eggs of

ratites. These standards will protect U.S. birds and poultry from

disease without requiring importers of hatching eggs of ratites to

comply with the more stringent standards appropriate for imported

birds.

EFFECTIVE DATE: October 14, 1994.

FOR FURTHER INFORMATION CONTACT: Dr. Keith A. Hand, Senior Staff

Veterinarian, Import-Export Animals Staff, National Center for Import-

Export, Veterinary Services, APHIS, USDA, room 768, Federal Building,

6505 Belcrest Road, Hyattsville, MD 20782, 301-436-5097.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 9 CFR Secs. 92.100 through 92.107, ``Subpart A--

Birds'' (referred to below as the regulations), regulate the

importation of birds to prevent the introduction of communicable

diseases of poultry and other domestic livestock into the United

States. As a condition of importation, all imported birds must be

quarantined for a minimum of 30 days upon their arrival in the United

States. The birds must be quarantined in either a U.S. Department of

Agriculture (USDA) quarantine facility or in a privately owned facility

approved by the Administrator of the Animal and Plant Health Inspection

Service (APHIS).

On August 3, 1993, we published in the Federal Register (58 FR

41204-41210, Docket No. 92-162-1) a proposal to amend the regulations

by allowing imported birds to be quarantined upon arrival in the United

States at any privately owned bird quarantine facility located near an

international airport or land-border port served by U.S. Customs,

provided the facility meets APHIS standards. Our proposal also

specified standards and handling procedures for incubator/hatcher areas

and chick holding areas in privately owned bird quarantine facilities

for hatching eggs of ratites.

We solicited comments concerning our proposal for a 60-day comment

period ending October 4, 1993. We received 214 comments by that date.

They were from breeders, importers, humane organizations, industry

associations, and representatives of State and Federal agencies. We

carefully considered all of the comments we received, and discuss them

below, by topic.

Bird Import Permit Issuance; Inspection

A number of commenters stated that APHIS has insufficient personnel

to provide services in conjunction with the avian import program, and

expressed concern that the proposed provisions would exacerbate the

problems that already exist. Several commenters expressed concern

regarding the provision in our proposed rule that lack of APHIS

personnel would be a condition for denial of a permit to import birds

or ratite hatching eggs, and also with the provision that permits would

be granted for ports of entry on a ``first-come-first-served'' basis.

One commenter stated that such a policy places an unreasonable

financial burden on importers, and suggested that when applications for

permits converge, APHIS charge additional fees to provide the

additional services. Another commenter expressed concern that the

demand for APHIS personnel would lead to a lottery system that would

destroy the ability of bird importers to operate in a normal business

environment.

We are making no changes based on these comments. Because the

geographical distribution of privately operated quarantine facilities

for birds is expected to be broader under this rule than under the

existing regulations, we anticipate that no one sector of APHIS

personnel will be excessively impacted. In those occasional cases where

sufficent personnel are not available in an area, we will make an

effort to accommodate each importer. In some cases, this may require

redistribution of APHIS personnel resources. Further, as we stated in

our proposed rule, and discuss below, we anticipate a decline in the

number of birds intended for importation into the United States.

A small number of commenters stated that issuing permits on a

``first-come-first-served'' basis would not take into account which

facilities are the most qualified or most experienced in handling

birds. We are making no changes based on these comments. Our statutory

authority does not empower us to favor one facility over another,

provided each facility is capable of meeting, and does meet, the

requirements of the regulations. Owners of birds intended for

importation into the United States will have the option of choosing

among quarantine facilities capable of complying with the regulations.

In our proposed rule, we included the requirement that an applicant

for an import permit submit a $10,000 deposit, along with a Cooperative

and Trust Fund Agreement, to cover the cost of APHIS services provided

during one quarantine and any additional costs that might be incurred

due to unexpected schedule changes or extensions of the quarantine

period. Several commenters supported the provision as proposed. One

commenter, however, stated that $10,000 was unreasonable for some

importers--for instance, zoological parks and aquariums that do not

import large numbers of birds at any single time and that are unlikely

to incur $10,000 in costs per importation. In reviewing the provision

in question, we agree with the commenter that, because of the range of

costs that might be incurred during a quarantine, it is difficult to

set one figure that will be equitable to all importers and still cover

the costs of services provided by APHIS. In some cases, the cost for

APHIS services has been considerably more than $10,000. Therefore, we

are providing in Sec. 92.106(c)(5)(i) that, in conjunction with a

Cooperative and Trust Fund Agreement, an importer shall deposit with

the Administrator a money order or cashier's check in an amount

determined by the Administrator to be sufficient to cover all costs

incurred by the Department in providing services in accordance with the

provisions of the Cooperative and Trust Fund Agreement. We are also

making corresponding changes in Secs. 92.106(c)(5)(ii) and (c)(19).

Also, we are adding language to Sec. 92.106(c)(19) to clarify that

importers will be billed for costs that exceed the amount deposited,

and are adding language to Sec. 92.103(a)(2)(ii) to clarify that an

applicant for an import permit may be denied an import permit or have

an import permit withdrawn if the applicant has any outstanding debts

to APHIS that were not paid when due. (See 9 CFR 130.51, ``Penalties

for nonpayment or late payment of user fees.'')

In our proposed rule, we stated that we expected a drop in the

number of bird import permit applications, due to a reduction in the

number of importable birds under the Wild Bird Conservation Act of 1992

(Pub. L. 102-440; the Act), which became effective on October 22, 1993.

A number of commenters stated that anticipating a drop in bird imports

due to the Act was premature, either because the moratoria on affected

species could be lifted if certain conditions are met, or because there

will likely be an increase in applications to import birds that are

eligible for importation.

We are making no changes based on these comments. Under the Act,

during most of Fiscal Year 1993 there was an importation quota, set at

Fiscal Year 1991 levels, on all species of wild birds listed in the

appendices to the Convention on International Trade in Endangered

Species of Wild Flora and Fauna (CITES). According to APHIS records,

during Fiscal Year 1993, 133,435 birds were imported into the United

States. This was a decrease from 271,913 birds in fiscal year 1992.

Although we do not have official figures for the number of birds

imported during Fiscal Year 1994 to date, unofficial reports from APHIS

officials indicate that the number is significantly lower than the

number imported during the same period during Fiscal Year 1993.

Although we agree that certain moratoria could be lifted, we consider

it unlikely that any will be lifted in the foreseeable future. If, in

the future, that situation should change, we will review the situation

to determine what action, if any, is appropriate.

Denial or Withdrawal of Import Permits

In Sec. 92.103 of the proposed rule, we set forth conditions for

denial of an import permit based on an importer's having breached the

integrity we consider necessary to carry out the importation of birds.

These conditions appear in the existing regulations in Sec. 92.106, but

apply there to denial of approval of privately owned bird quarantine

facilities based on a breach of integrity by the operator or other

person responsibly connected with the business. Following publication

of our proposed rule, we published an interim rule in the Federal

Register on March 8, 1994 (59 FR 10729-10734, Docket No. 93-137-1),

that set forth in Sec. 92.103 conditions for the denial or withdrawal

of a permit to import ratites or hatching eggs of ratites. Certain of

these conditions also contained provisions regarding the integrity

necessary for the conduct of operations affecting an importation, and

are duplicative of the provisions set forth in our proposed rule.

Therefore, in this rule, we are revising certain of the proposed

provisions to eliminate this duplication.

Additionally, certain of the provisions in our interim rule

regarding denial or withdrawal of a permit to import ratites and

hatching eggs of ratites expanded on the provisions in our proposal.

For instance, in Sec. 92.103(a)(2)(vii) of our interim rule, we

provided for an opportunity for a hearing in cases where the denial or

withdrawal of a permit involves a dispute of material facts. To make

our regulations consistent, in this rule we are extending these

provisions to apply to import permits for all birds, not just for

ratites and hatching eggs of ratites. Also, consistent with the

expressed intent of our proposal to enter into contractual agreements

solely with the importer, we are providing in Sec. 92.103(a)(2)(vii)

that notification of denial or withdrawal of an import permit will be

given only to the importer.

Our proposed rule addressed only the ``denial'' of a permit to

import birds. However, the provisions in the existing regulations

regarding ratites and hatching eggs of ratites, including those added

by our interim rule, address both the denial and withdrawal of an

import permit. There is no reason the provisions regarding all birds

should differ in this case from those for ratites and hatching eggs of

ratites. Therefore, in this rule, we refer to both the denial and

withdrawal of import permits for birds.

A number of commenters suggested that the proposed regulations too

narrowly limited the circumstances under which APHIS might deny or

withdraw an import permit. One commenter stated that harassment of

APHIS employees should constitute grounds for denial or withdrawal of

an import permit. We agree with the commenter, and have revised

Sec. 92.103(a)(2)(i) (redesignated as Sec. 92.103(a)(2)(ii) in this

rule) to provide for denial or withdrawal of an import permit if any

person responsibly connected with an importation threatens to forcibly

assault or forcibly assaults, intimidates, or interferes with any APHIS

representative or employee in, or on account of, the performance of his

or her official duties, unless, promptly upon the incident being

brought to the importer's attention by the authorized supervisor of the

APHIS representative or employee, and to the satisfaction of that

supervisor, the importer (1) justifies the incident, (2) takes

effective steps to prevent a recurrence, or (3) provides acceptable

assurance that there will not be any recurrences.

Ports of Entry

Several commenters noted that bird importers are subject to the

regulations of the Fish and Wildlife Service (FWS), U.S. Department of

the Interior, as well as to APHIS regulations. This is correct, and a

footnote citing those permit requirements is provided in Sec. 92.103 of

the regulations.

Several commenters noted that, under Fish and Wildlife Service

regulations, wild birds may be imported only through FWS-designated

ports. The commenters stated that if APHIS allows birds to be

quarantined at facilities throughout the country, long-distance

shipping of birds from FWS-designated ports to quarantine facilities is

likely. The commenters stated that such shipping would promote disease

and subject birds to stress, increasing morbidity and mortality. We are

making no changes based on these comments. Our experience under the

current regulations is that such shipping occurs rarely. When it does

occur, it is carried out by means of chartered aircraft. In most cases,

as an alternative to such shipping, arrangements are made with FWS to

allow importation of the birds through a port serviced by a quarantine

facility meeting APHIS requirements.

Standards for Quarantine Facilities

In our proposal, we inadvertently omitted a requirement that a

quarantine facility be inspected by an APHIS representative, and be

found to comply with the standards set forth in the regulations, before

any permit will be issued. Such a requirement had been provided for in

Sec. 92.106(c)(5)(vi), ``Selection of applicants for consideration for

approval of bird quarantine facilities,'' which is being removed in

this rulemaking. Several commenters stated that this apparent

relaxation of standards for privately owned bird quarantine facilities

was inappropriate. We agree that such a relaxation would be

inappropriate, and regret the confusion caused by our inadvertent

omission of the requirement. To prevent future confusion, we are adding

this requirement both to the section that sets forth import permit

requirements, at Sec. 92.103(a)(2)(i), and to the section that sets

forth construction requirements, at Sec. 92.106(c)(2)(ii)(M).

One commenter recommended that the regulations provide that a

permit will not be issued prior to the completion of construction at

the quarantine facility. We agree that, in order for us to conduct an

adequate inspection of a quarantine facility, all construction must be

completed, and are requiring at both Sec. 92.103(a) and

Sec. 92.106(c)(2)(ii)(L) that such construction be completed before an

application for a permit is submitted.

One commenter supported our intent to enter into a contractual

agreement with the importer, but stated that both the importer and the

facility operator should be held liable for any failure to comply with

the regulations. We are making no change based on this comment. It is

the policy of Veterinary Services, APHIS, to enter into each

contractual agreement with a single legal entity (``person'') only. In

this case, we expect the importer to ensure that the quarantine

facility operates in accordance with the regulations.

Disease Risk

A number of commenters expressed concern that imported ratite

hatching eggs will introduce viscerotropic velogenic Newcastle disease,

avian influenza, salmonella enteriditis phage type 4, or unknown

diseases unique to ratites, into the United States. We are making no

changes based on these comments. We have determined that, under the

unrevised regulations, using the worst case scenario, the likely

frequency of importing and releasing a lot of infected ratite hatching

eggs is 1 every 74 years. Under the revised regulations, the worst case

estimate is that, due to a potential increase in imported ratite

hatching eggs, this frequency will increase to approximately 1 such

importation every 25 years. However, the most likely frequency under

the revised regulations is 1 every 5,000 years (``Probability of VVND,

HPAI, or SE4 in Imported Ostrich Eggs,'' APHIS, USDA, March, 1994).

Therefore, we disagree with commenters who contend that under this rule

ratite hatching eggs will present a significant disease risk to U.S.

birds and poultry.

One commenter stated that privately owned quarantine facilities for

birds should be required to post a $10 million bond, in case a disease

spreads from a bird quarantined at that facility to domestic ranches.

We are making no changes based on this comment. The requirements in the

existing regulations for approved privately owned bird quarantine

facilities were essentially incorporated into the proposed requirements

for privately owned facilities. Based on our experience enforcing the

regulations, we consider these requirements adequate to prevent the

spread of disease from quarantine facilities.

A small number of commenters expressed concern that the high

mortality rate for imported ostrich eggs might be disease-related. The

commenters stated that additional quarantine facilities should not be

allowed until the problem of high mortality is solved. We are making no

changes based on these comments. We know of no evidence to indicate

that the high mortality rate for imported hatching eggs is due to

disease. While the mortality rate for imported hatching eggs has been

very high, it is slowly improving. At the time our proposal was

published, only 14.2 percent of ratite hatching eggs imported into the

United States since 1991 had been released from quarantine as live

chicks. However, during Fiscal Year 1993, the percentage of live chicks

released was 22.1 percent. We believe that this improvement is the

result of improved management practices, and we expect further

improvement as more experience is gained in the importation of ratite

hatching eggs.

One commenter questioned why we proposed to remove from the

regulations the provision that the same quarantine facility may have

multiple units for handling separate lots of birds, provided each unit

is at least 1/2 mile from any other unit. We removed this provision

because, under the regulations as proposed, it is no longer necessary.

What used to be referred to as multiple units will under this rule be

considered separate facilities.

One commenter requested that the regulations clarify that chicks

may not be transferred from one facility to another until release from

quarantine. We consider this restriction to be clear in

Sec. 92.106(c)(3)(ii) of the current regulations, and are making no

changes based on this comment.

Special Provisions for Facilities for Ratite Hatching Eggs

Instead of allowing hatching eggs of ratites comprising a single

lot to be added to the quarantine facility in stages for up to 15 days

after the arrival of the first shipment, as proposed, several

commenters stated that we could make APHIS personnel available who

would otherwise be constrained by the extended quarantines, if we

reduced this period to 7 or 8 days. As we stated in the proposed rule,

experience has shown that the 15-day period for incremental shipments

affords importers the flexibility that they need. Therefore, we are

making no changes as a result of these comments.

One commenter recommended that the regulations require that the

bird (chick) holding area in any facility for hatching eggs of ratites

be of a size large enough to accommodate the capacity of the incubator.

We agree that adequate space is necessary for the health of the hatched

chicks and are including at Sec. 92.106(c)(2)(ii)(O) of this rule that

the bird (chick) holding area must be large enough to provide 10 square

feet per chick for 75 percent of the eggs in the incubator. Based on

our experience enforcing the regulations, we consider 75 percent to be

the maximum percentage of eggs likely to hatch in a lot, and 10 square

feet to be the minimum amount of space necessary per hatched chick.

Several commenters stated that in a sun room where double-mesh

screening is used, one layer of the double mesh should be impervious to

biting insects, such as mosquitoes and gnats. We agree, and have added

this requirement to Secs. 92.106(c)(2)(ii) (P)(1) and (2) of this rule.

One commenter expressed concern that in quarantine facilities with

a sun room for chicks, the chicks would be quarantined in an ``open

area.'' Other commenters expressed concern that it would be difficult

to ensure that birds are not removed from the quarantine facility in

violation of the regulations.

While a sun room by nature is intended to allow birds sunlight, it

was not our intention that the area be without security measures. A

number of security features were included in the proposed rule. For

instance, the sun room must have a roof that is both impervious to

free-flying birds and capable of preventing contact between chicks and

free-flying birds. Additionally, if any of the walls of the room are

made of mesh, a 6-foot-high, chain-link fence with barbed wire at the

top, or equivalent security system, must be located at least 10 feet

from the screening. Our proposal, however, did not specify how high the

walls of the sun room must be. While this omission would not create a

significant security problem in those cases where the walls are made of

mesh, due to the requirement for the perimeter fence described above,

it could present a security problem if the walls are not made of mesh.

Therefore, in this rule, we are requiring in Sec. 92.106(c)(2)(ii)(P)

that walls of the sun room must be at least 8 feet high. We consider

this height sufficient to discourage attempts at illegal entry into the

sun room.

One commenter questioned the proposed provision that would prevent

personnel from working with a second lot of eggs until 3 days after the

release of the first lot from quarantine. If the birds can safely

mingle with domestic flocks immediately after release from quarantine,

this commenter asked, why would the personnel who worked with them

present a disease risk? We agree with the commenter that the 3-day

delay is unnecessary following a completed quarantine, and are removing

this provision from Secs. 92.106 (c)(3)(i)(A)(4) and (c)(5)(iii)(A)(3).

One commenter questioned the need for a \1/2\-mile separation

between quarantine facilities, in light of the fact that the same

facility can have separate areas for ratite hatching eggs and chicks.

We are making no changes based on this comment. In those facilities

with areas for both hatching eggs and chicks, the first lot of chicks

will be released from the facility before the eggs are hatched. This

might not be the case if eggs in different facilities are hatching on

different schedules. If separate facilities, each containing chicks,

are not at least \1/2\ mile apart, there could be a risk of airborne

transmission of disease.

Economic Analysis

We included in our proposed rule an analysis of the potential

economic impact of the proposed regulations. As part of our analysis,

we included estimates of the number of ostrich farmers and adult

ostriches in the United States (between 2,000 and 3,000 farmers with

between 2 and 200 ostriches each). A number of commenters disagreed

with our estimates, stating that we underestimated the number of

ostrich farms in the United States. Many of these commenters stated

that our economic analysis should have considered all ratite farms, not

just ostrich farms.

We agree that any economic impact this rule might have could affect

ratite owners other than ostrich owners. However, as we stated in our

proposed rule, our records indicate that entities in the ratite

hatching egg industry concentrate on ostrich eggs. Because ratites

other than hatching eggs are not allowed to be quarantined in privately

owned facilities, importers of ratites other than hatching eggs will

not be affected by this rule.

We also agree that our estimates of the number of ostrich farms in

the United States is probably low, partly because of the time that has

passed since we developed the economic analysis in the proposal.

However, none of the commenters who questioned our estimates included

published documents to substantiate their estimates. Estimates supplied

by the commenters of the number of ratite farms ranged from 3,500

ostrich farms to 10,000 ratite farms. Estimates of the number of adult

ostriches in the United States ranged from 20,000 to 50,000. Because of

this wide range of estimates, and because we are unaware of a reliable

published census of ratite farms in this country, we are not including

an estimate of the number of ratite owners or ratites in the economic

analysis of this rule.

Miscellaneous

Several commenters stated that this rulemaking will conflict with

or preempt State laws. After a review of State laws brought to our

attention, we do not believe that this revision will result in a

conflict with any State laws.

In Sec. 92.103(a)(1) of the proposed rule, we stated that

applicants using an APHIS form to apply for a permit to import birds

other than ratites or hatching eggs of ratites should use VS form 12-

129. That is not the appropriate form for such applications, and we are

including a reference to the appropriate form, VS form 17-20, in this

final rule.

Also, one commenter stated that we should specify how soon

following receipt of an application for a permit to import birds or

hatching eggs of ratites we will issue a permit. We agree that knowing

the time necessary for issuance of a permit will help importers better

plan their importations. Therefore, we are providing in

Sec. 92.106(c)(5)(iii)(B)(2) of this rule that we will issue permits to

import birds and hatching eggs of ratites 3 working days following

receipt of the permit application, depending upon the availability of

APHIS personnel to provide the necessary services at the quarantine

facility (discussed in this Supplementary Information, above, under the

heading ``Bird Import Permit Issuance; Inspection'') and upon the

results of an APHIS representative's inspection of the quarantine

facility.

We are also making several nonsubstantive changes to correct a

typographical error, to make a provision read more clearly, to make it

clear that this rule refers only to quarantine facilities for birds,

and to redesignate footnote references in accordance with Federal

Register guidelines.

Additional Comments

A number of commenters addressed issues that were not raised in our

proposed rule. Among these, many commenters expressed concern that any

importation of ratites or hatching eggs of ratites, even if conducted

under the existing regulations, poses a disease risk to domestic ratite

and poultry flocks. Commenters also questioned the efficacy of current

testing, necropsy, recordkeeping, surveillance, construction, and

security requirements for approved bird quarantine facilities. Other

issues raised included: permanent identification of ratites or hatched

ratite chicks entering or leaving quarantine; quarantine duration;

post-quarantine tracking of hatched ratite chicks; genetic criteria for

ratite hatching eggs; interstate movement restrictions; local building

codes; indiscriminate breeding; smuggled birds; ratite susceptibility

to airborne diseases; and the economic advisability of providing for

the importation of increased numbers of ratite hatching eggs. Although

we are taking no action based on these comments at this time, we have

reviewed each of them and will consider them in determining what

action, if any, is appropriate in the future.

Therefore, based on the rationale set forth in the proposed rule

and in this document, we are adopting the provisions of the proposal as

a final rule, with the changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been determined to be significant for the purposes of

Executive Order 12866 and therefore has been reviewed by the Office of

Management and Budget.

While these regulations will promote competition in the bird

importation industry in the United States, the Wild Bird Conservation

Act of 1992 prohibits importations of certain exotic birds into the

United States. During the transition year from October 23, 1992,

through October 22, 1993, an importation quota, set at Fiscal Year 1991

import levels, applied to all species of exotic birds listed in the

Appendices to the Convention on International Trade in Endangered

Species of Wild Flora and Fauna (CITES). Effective October 22, 1993,

the importation of all wild-caught exotic birds (species listed in the

CITES Appendices) has been prohibited.

Cockatiels and budgerigars are among the few exotic birds that are

not listed in the Appendices to CITES and are imported into the United

States. Because these birds breed well in captivity, and are therefore

readily available in the United States, they are imported in very low

volumes.

Hatching eggs of ostriches and other ratites are unaffected by the

Wild Bird Conservation Act of 1992. Therefore, potential importers of

these eggs are likely to benefit from easier access to privately owned

bird quarantine facilities. Our records indicate that entities involved

in the hatching egg industry concentrate on ostrich eggs; we therefore

expect this rule to affect primarily the ostrich egg industry. Because

ratites other than hatching eggs are not allowed to be quarantined in

privately owned facilities, importers of ratites other than hatching

eggs will not be affected by this proposed rule.

Of the approximately 69 USDA-approved bird quarantine facilities

now operating, fewer than 45 are equipped with hatcheries able to

facilitate the importation and incubation of ratite hatching eggs. This

rule might double, or possibly triple, this number. However, because

the number of eggs available for import is limited, not least by the

export restrictions of other countries, a significant increase in the

total number of ostrich egg importations appears unlikely. Further

limiting the domestic effects of increased importations is the poor

success rate of imported hatching eggs. Of ratite hatching eggs

imported into the United States during Fiscal Year 1992, no more than

22.1 percent were released from quarantine as live chicks.

Domestic ratite production has grown rapidly in recent years.

However, we are unaware of any reliable census of the number of ratite

farms and adult ratites in this country.

In the short run, domestic ostrich producers could experience a

minor adverse economic impact if more ostrich hatching eggs are

imported and domestic prices decline as a result. This will depend on

whether demand continues to increase faster than supply, and on the

corresponding effect on prices. In the long run, the domestic ratite

industry is expected to benefit from increased imports. An expanded

domestic supply will cause U.S. prices for ratites and ratite products

to drop, allowing more people access to the industry. It is anticipated

that reduced prices will lead to larger domestic populations of

ostriches, a change that will benefit consumers and at the same time

enhance the economic viability of commercial ratite breeding,

slaughter, feather, and leather markets.

While easing access to quarantine facilities could, in the short

term, increase the number of ostrich egg importations, the effect on

the U.S. supply of ostriches is not expected to be significant, based

on the current success rate for hatching imported ratite eggs.

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 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 1980 (44 U.S.C.

3501 et seq.), the information collection or recordkeeping requirements

included in this final rule will be submitted for approval to the

Office of Management and Budget.

List of Subjects in 9 CFR Part 92

Animal diseases, Imports, Livestock, Poultry and poultry products,

Quarantine, Reporting and recordkeeping requirements.

Accordingly, 9 CFR part 92 is amended as follows:

PART 92--IMPORTATION OF CERTAIN ANIMALS AND POULTRY AND CERTAIN

ANIMAL AND POULTRY PRODUCTS; INSPECTION AND OTHER REQUIREMENTS FOR

CERTAIN MEANS OF CONVEYANCE AND SHIPPING CONTAINERS THEREON

1. The authority citation for part 92 continues to read as follows:

Authority: 7 U.S.C. 1622; 19 U.S.C. 1306; 21 U.S.C. 102-105,

111, 114a, 134a, 134b, 134c, 134d, 134f, 135, 136, and 136a; 31

U.S.C. 9701; 7 CFR 2.17, 2.51, and 371.2(d).

Subpart A--[Amended]

2. In part 92, Subpart A--Birds, footnotes 11 and 13 are removed,

footnote 12 is redesignated as footnote 11, the first footnote 14 is

redesignated as footnote 12, and the second footnote 14 is redesignated

as footnote 13.

Sec. 92.100 [Amended]

3. In Sec. 92.100, the definition of ``Operator'' is removed.

Sec. 92.101 [Amended]

4. In Sec. 92.101, paragraphs (b)(3)(i)(B) and (b)(3)(i)(I) are

amended by removing the reference to ``Sec. 92.103(a)(2)(iii)'' in each

of those paragraphs and adding ``Sec. 92.103(a)(2)(iv)'' in its place.

5. Section 92.103 is amended as follows:

a. In the heading, the footnote is removed.

b. In paragraph (a), introductory text is added, to read as set

forth below.

c. Paragraph (a)(1) is revised to read as set forth below.

d. Paragraph (a)(2)(v) is removed; paragraphs (a)(2)(i) through

(a)(2)(iv) are redesignated as paragraphs (a)(2)(ii) through (a)(2)(v),

respectively; newly redesignated paragraph (a)(2)(ii) is revised;

paragraph (a)(2)(vi) is revised; and new paragraphs (a)(2)(i) and

(a)(2)(viii) are added, to read as set forth below.

e. In paragraph (a)(2)(vii), the second, fourth, and fifth

sentences are amended by removing the words ``or the operator of the

farm of the flock of origin'' in each of those sentences.

Sec. 92.103 Import permits for birds; and reservation fees for space

at quarantine facilities maintained by APHIS.

(a) * * * Before any permit application is submitted, all

construction at the quarantine facility must be completed.

(1) For pet birds, commercial birds, research birds, zoological

birds, and performing or theatrical birds, intended for importation

into the United States, except as otherwise provided in Secs. 92.101

(b) and (c), 92.103(c), and 92.214, the importer shall first apply for

and obtain an import permit. The importer (permit applicant) shall

submit a completed VS form 17-128 for ratites or hatching eggs of

ratites; or, for other birds, a completed VS form 17-20; or shall

submit a document that states that it is an application for a permit to

import ratites, hatching eggs of ratites, or birds other than ratites

or hatching eggs of ratites. The application\8\ must include the

following information:

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\8\VS import permit application forms are available from local

offices of Veterinary Services, which are listed in telephone

directories, or from the Administrator, c/o National Center for

Import-Export, VS, APHIS, USDA, Federal Building, 6505 Belcrest

Road, Hyattsville, MD 20782. For other permit requirements for

birds, the regulations issued by the U.S. Department of the Interior

(title 50, Code of Federal Regulations, parts 14 and 17) should be

consulted.

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(i) The name, address, and telephone number of the importer;

(ii) The status of the importer, such as individual, partnership,

or corporation (if incorporated, include State where incorporated and

date of incorporation);

(iii) Name and address of the quarantine facility;

(iv) Date of intended quarantine;

(v) The purpose of the importation;

(vi) The country of origin;

(vii) The name and address of the exporter;

(viii) The port of embarkation in the foreign country;

(ix) The mode of transportation, route of travel, and port of entry

in the United States;

(x) The name and location of the quarantine facility in the United

States to which delivery will be made from the port of entry, in

accordance with Sec. 92.106(c)(5);

(xi) A drawing of the floor plan for the facility showing the

location of the bird holding area; equipment storage areas; office

areas; clothes storage and change areas; feed storage areas; necropsy

areas (showing entry and refrigeration); washing areas for equipment;

shower areas; ventilation arrangements; and entries and exits; and, for

a facility for hatching eggs of ratites in which the hatching eggs of

one lot may be quarantined at the same time as the hatched chicks from

a previously quarantined lot, the incubation/hatcher and bird (chick)

holding areas; and

(xii) Date and certification, by signature of the importer (permit

applicant), after the following language:

I certify that the information provided herein is true and correct

to the best of my knowledge and belief, and agree to comply with the

applicable regulations in title 9, Code of Federal Regulations,

Secs. 92.100 through 92.107;

(xiii) In addition, the application for a permit to import ratites

or hatching eggs of ratites shall specify the number of ratites or

hatching eggs intended for importation, the size of the flock of

origin, and the location of the premises where the flock of origin is

kept; and shall state that, from the date of application through the

date of export, APHIS representatives shall be granted access to the

premises where the flock of origin is kept. (For ratites intended for

importation as zoological birds, the flock of origin shall be the

ratites intended for importation.)

(2)(i) An import permit will be issued only after an APHIS

representative has inspected the quarantine facility identified on the

permit application, and has determined that it meets the standards set

forth in Sec. 92.106(c) of this part.

(ii) An application for a permit to import pet birds, commercial

birds, research birds, zoological birds, and performing or theatrical

birds, may be denied or withdrawn because of: Communicable disease

conditions in the area or country of origin, or in a country where the

shipment has been or will be held or through which the shipment has

been or will be transported; deficiencies in the regulatory programs

for the control or eradication of animal diseases and the

unavailability of veterinary services in the above mentioned countries;

the importer's failure to provide satisfactory evidence concerning the

origin, history, and health status of the animals; the lack of

satisfactory information necessary to determine that the importation

will not be likely to transmit any communicable disease to livestock or

poultry of the United States; the lack of APHIS personnel; any

outstanding debts to APHIS the permit applicant has not paid when due;

or any other circumstances which the Administrator believes require

such denial or withdrawal to prevent the dissemination of any

communicable disease of livestock or poultry into the United States,

such as if:

(A) Any requirement of this subpart is not complied with;

(B) The importer (permit applicant) or any person responsibly

connected with the importer's business, any person responsibly

connected with the privately owned bird quarantine facility through

which the importation is intended, or, in the case of the importation

of ratites or ratite hatching eggs, the operator of the flock of origin

or a person responsibly connected with the owner of the flock of

origin, has been convicted of any crime under any law regarding the

import or export of goods, regarding the quarantine of any animal or

bird, or the illegal movement of goods within a country, or involving

fraud, bribery, extortion, or of any other crime involving lack of the

integrity needed for the conduct of operations affecting the

importation of birds;

(C) The importer (permit applicant) or any person responsibly

connected with the importer's business, any person responsibly

connected with the privately owned bird quarantine facility intended

for use for the importation, or, in the case of the importation of

ratites or ratite hatching eggs, the operator of the flock of origin or

a person responsibly connected with the owner of the flock of origin,

threatens to forcibly assault or forcibly assaults, intimidates, or

interferes with any APHIS representative or employee in or on account

of the performance of his or her official duties, unless, promptly upon

the incident being brought to the importer's attention by the

authorized supervisor of the APHIS representative or employee, and to

the satisfaction of that supervisor, the importer justifies the

incident, takes effective steps to prevent a recurrence, or provides

acceptable assurance that there will not be any recurrences; or

(D) For any violation of the regulations in this subpart.

* * * * *

(vi) For the purposes of this section, a person shall be deemed to

be responsibly connected with an importer's business, a privately owned

bird quarantine facility, or an owner of a flock of origin, if such

person has an ownership, mortgage, or lease interest in the physical

plant of the importer's business, the privately owned bird quarantine

facility, or the farm of the flock of origin, or if such person is a

partner, officer, director, holder or owner of 10 per centum or more of

the voting stock of the importer's business, the privately owned bird

quarantine facility, or the farm of the flock of origin, or is an

employee of the importer's business, the privately owned bird

quarantine facility, or the owner of the flock of origin.

* * * * *

(viii) If APHIS receives more than one application for a permit to

import birds through a specified port of entry at approximately the

same time, such that APHIS personnel could provide services to only one

importer (permit applicant) who requests them, APHIS will issue the

permit to the first importer who meets the requirements of this subpart

to deposit, with the Administrator, the completed cooperative and trust

fund agreement, accompanied by the required deposit.

* * * * *

6. In Sec. 92.105, paragraph (a) is revised to read as follows:

Sec. 92.105 Inspection at the port of entry.

(a) All commercial birds, zoological birds, and research birds,

including hatching eggs of ratites, but excluding other ratites,

imported into the United States, must be inspected by the port

veterinarian at the Customs port of entry, which may be any

international airport, or any land-border port within 20 miles of an

international airport, serviced by Customs. However, hatching eggs of

ratites may be shipped, in bond, from the port of first arrival to the

Customs port of entry at which they will be quarantined, for inspection

at that port.

* * * * *

7. Section 92.106 is amended as follows:

a. In paragraph (a), the first sentence is revised to read as set

forth below.

b. In paragraph (a), the third sentence is amended by removing the

term ``Veterinary Services,''.

c. In paragraph (a), the sixth sentence is amended by removing the

term ``an approved quarantine facility'' and adding the term ``a

privately owned quarantine facility'' in its place, and by removing the

words ``operator of the facility'' and adding the word ``importer'' in

their place.

d. In paragraph (a), the seventh sentence is removed.

e. In paragraph (b)(2), the second sentence is amended by removing

the words ``approved by the Administrator in accordance with'' and

adding the words ``that meets the requirements of'' in their place.

f. In paragraph (b)(4), the first sentence is amended by adding the

word ``of'' after the word ``free''.

g. In paragraph (c), the heading and introductory text are revised

to read as set forth below.

h. Paragraph (c)(1), the introductory text to paragraph (c)(2)(i),

paragraph (c)(2)(i)(A) and (c)(2)(i)(B), and the introductory text to

paragraph (c)(2)(ii) are revised to read as set forth below.

i. Paragraph (c)(2)(ii)(K) is amended by removing the period at the

end of the sentence and adding a semicolon in its place.

j. New paragraphs (c)(2)(ii)(L), (M), (N), (O), and (P) are added

to read as set forth below.

k. In paragraph (c)(3), the heading and introductory text are

revised to read as set forth below.

l. Paragraphs (c)(3)(i)(A) and (A)(1) are amended by adding the

term ``or the incubator/hatcher area'' after the term ``bird holding

area'' each time it appears.

m. Paragraph (c)(3)(i)(A)(3) is revised to read as set forth below.

n. A new paragraph (c)(3)(i)(A)(4) is added to read as set forth

below.

o. Paragraph (c)(3)(i)(B) is amended by removing the term

``operator of the facility'' and adding the term ``importer'' in its

place.

p. New paragraphs (c)(3)(ii)(A)(1) and (A)(2) are added to read as

set forth below.

q. Paragraphs (c)(3)(ii)(D) and (E) are amended by removing the

term ``facility operator'' each time it appears, and adding the term

``importer'' in its place.

r. Paragraph (c)(3)(iii) is amended by removing the term ``operator

of the facility'' both times it appears, and adding the term

``importer'' in its place.

s. Paragraphs (c)(5) and (c)(6) are removed, and paragraph (c)(7)

is redesignated as paragraph (c)(5).

t. In newly redesignated paragraph (c)(5), the introductory text

and paragraphs (c)(5)(i) and (c)(5)(ii) are revised to read as set

forth below.

u. In newly redesignated paragraph (c)(5)(iii), the heading of the

Cooperative And Trust Fund Agreement is amended by removing the word

``OPERATOR'' and adding the word ``IMPORTER'' in its place, and by

removing the word ``Services'' and adding the word ``Service'' in its

place.

v. In newly redesignated paragraph (c)(5)(iii), the first

undesignated paragraph is amended by removing the word ``operator'' and

adding the word ``importer'' in its place, and by removing the word

``Cooperator'' and adding the word ``Importer'' in its place.

w. Newly redesignated paragraph (c)(5)(iii) is amended by removing

the word ``approved'' in the following places:

i. First undesignated paragraph.

ii. Paragraphs (A)(1), (A)(3), (A)(5), (A)(6), and (A)(8).

iii. Paragraph (A)(20) both times it appears.

iv. Paragraph (B)(6).

v. Paragraph (C)(1) both times it appears.

x. In newly redesignated paragraph (c)(5)(iii), the second

undesignated paragraph is amended by removing the phrase ``Cooperator

represents parties'' and adding the phrase ``Importer is'' in its

place.

y. In newly redesignated paragraph (c)(5)(iii), the third

undesignated paragraph is amended by removing the phrase ``quarantine

facilities approved in accordance with part 92, 9 CFR, for use in

importing birds'' and adding the phrase ``a bird quarantine facility

that meets the requirements of paragraph (c) of this section'' in its

place.

z. Newly redesignated paragraph (c)(5)(iii) is amended by removing

the word ``Cooperator'' and adding the word ``Importer'' in its place,

in the following places:

i. In the third and fourth undesignated paragraphs.

ii. Paragraphs (A), (A)(2), (A)(3), and (A)(4) each time it

appears.

iii. Paragraph (A)(14) each time it appears.

iv. Paragraph (A)(18).

v. Paragraph (B)(2) each time it appears.

vi. Paragraph (B)(4).

vii. Paragraph (B)(6) each time it appears.

viii. Paragraph (B)(7) each time it appears.

ix. Paragraph (C)(3).

x. After paragraph (C)(5), below the first signature line.

aa. In newly redesignated paragraph (c)(5)(iii)(A)(2), the first

sentence is amended by removing the phrase ``a quarantine period'' and

adding the phrase ``the quarantine period'' in its place.

bb. In newly redesignated paragraph (c)(5)(iii)(A)(3), the last

sentence is revised to read as follows: ``This restriction ceases to

apply on the date the birds are released from quarantine.''

cc. Newly redesignated paragraph (c)(5)(iii)(A)(5) is amended by

removing the reference ``92.109(c)'' and adding the reference

``92.106(c)'' in its place.

dd. In newly designated paragraph (c)(5)(iii)(A)(18), the word

``Cooperator's'' is removed and the word ``Importer's'' is added in its

place.

ee. Newly redesignated paragraph (c)(5)(iii)(A)(19) is revised to

read as set forth below.

ff. Newly redesignated paragraph (c)(5)(iii)(A)(20) is amended by

removing the words ``as provided in part 92 of 9 CFR'' at the end of

the paragraph, and by adding the words ``contained in title 9, Code of

Federal Regulations, Sec. 92.106(c)'' in their place.

gg. Newly redesignated paragraphs (c)(5)(iii)(B)(2) and (B)(3) are

redesignated as, respectively, paragraphs (c)(5)(iii)(B)(3) and (B)(2).

hh. Newly redesignated paragraph (c)(5)(iii)(B)(2) is revised to

read as set forth below.

jj. Newly redesignated paragraph (c)(5)(iii)(B)(3) is amended by

removing the words ``on a quarterly basis, or''.

kk. In newly redesignated paragraph (c)(5)(iii)(B)(6), the third

sentence is amended by removing the words ``the designated shall'' and

adding the words ``the designated employee shall'' in their place.

ll. In newly redesignated paragraph (c)(5)(iii)(C)(2), the

reference ``(c)(7)(iii)(A)(16)'' is removed and the reference

``(c)(5)(iii)(A)(16)'' is added in its place.

mm. In newly redesignated paragraph (c)(5)(iii)(c)(3), newly

redesignated footnote 12 is amended by removing the term ``operator of

a bird quarantine facility'' and adding the word ``importer'' in its

place.

nn. In newly redesignated paragraph (c)(5)(iii)(C)(5), the first

sentence is amended by removing the word ``indefinitely'' and adding

the words ``until the permitted lot of birds is released from

quarantine'' in its place.

oo. In paragraph (d), the introductory language is amended by

removing the word ``operator'' and adding the word ``importer'' in its

place, and by removing the reference ``paragraph (d)'' and adding the

reference ``paragraph (c)'' in its place.

Sec. 92.106 Quarantine requirements.

(a) Birds other than ratites and hatching eggs of ratites. Each lot

of pet birds, except as provided for in Sec. 92.101(c) of this part;

research birds; and commercial birds and zoological birds, except

ratites and hatching eggs of ratites, imported into the United States

shall be quarantined for a minimum of 30 days, and for such longer

period as may be required by the Administrator, in any specific case,

on an ``all-in, all-out'' basis, at a Customs port of entry, at a USDA

quarantine facility when arrangements have been made in advance by the

importer and approval is granted in the permit described in

Sec. 92.103, or in facilities that meet the requirements of paragraph

(c) of this section. * * *

* * * * *

(c) Standards for privately owned bird quarantine facilities and

handling procedures for importation of birds. Before the Administrator

will issue an import permit for a lot of birds, the Administrator must

determine that the privately owned bird quarantine facility to be used

to quarantine birds imported into the United States (the facility) and

its maintenance and operation meet the minimum requirements of

paragraphs (c)(1) through (c)(5) of this section, that adequate APHIS

personnel are available to provide services required by the facility,

and that a Cooperative and Trust Fund Agreement between the importer

and the Department has been executed, and the required funds have been

deposited, in accordance with that agreement. The cost of the facility

and all costs associated with its maintenance and operation must be

borne by the importer, in accordance with the provisions of paragraph

(e) of this section.

(1) Supervision of the facility. The facility shall be maintained

under the supervision of the port veterinarian at the Customs port of

entry.

(2) * * *

(i) Location. Each privately owned bird quarantine facility shall

be located:

(A) Within the immediate metropolitan area of the port of entry to

prevent the imported birds, while in transit to the quarantine

facility, from introducing or disseminating disease to domestic poultry

or livestock.

(B) At least one-half mile from any concentration of avian species,

such as, but not limited to, poultry processing plants, poultry or bird

farms, pigeon lofts, or other bird quarantine facilities. Factors such

as prevailing winds, the efficiency of the air filtration system of the

quarantine facility, possible exposure to poultry or birds moving in

local traffic, etc., shall be taken into consideration.

(ii) Construction. Each quarantine facility shall consist of a

single, self-contained building, which shall:

* * * * *

(L) All construction must be completed before any permit

application is submitted in accordance with Sec. 92.103.

(M) An APHIS representative shall inspect the facility to determine

whether the facility complies with the standards set forth in this

section before any permit is issued in accordance with Sec. 92.103.

Inspections shall take place at least once each year.

(N) In addition, a facility for hatching eggs of ratites, in which

the hatching eggs of one lot may be quarantined at the same time as the

hatched chicks from the previously quarantined lot, shall:

(1) Have a wall or a wall with a lockable door separating the

incubator/hatcher area from the bird (chick) holding area, and this

wall or wall-with-door shall provide an airtight seal between the two

areas, shall be impervious to water, and shall be able to withstand

continued cleaning and disinfection;

(2) Have a necropsy or sample collection area in both the

incubator/hatcher area and the bird (chick) holding area; and

(3) Have separate entrances, showers, toilets, and dressing room

facilities for the exclusive use of personnel working in the incubator/

hatcher area and the bird (chick) holding area.

(O) The bird (chick) holding area in any facility for hatching eggs

of ratites shall be of a size large enough to accommodate 75 percent of

the incubator capacity, with a minimum of 10 square feet per egg.

(P) If a facility for hatching eggs of ratites has a sun room, the

sun room shall be connected to the chick holding area by a wall with a

lockable door. This wall; the other walls, if any; and the flooring,

must be impervious to water and able to withstand continued cleaning

and disinfection. All walls of the sun room must be at least 8 feet

high.

(1) Double-mesh screening impervious to biting insects (such as

gnats or mosquitoes), or its equivalent, set in a concrete or concrete-

block curb may replace any of the exterior walls, provided this curb is

at least 12 inches high, impermeable to water, and able to prevent the

escape of water, manure, and debris to the surrounding area. A 6-foot-

high, chain-link fence with barbed wire at the top, or equivalent

security system, must be located at least 10 feet from the double-mesh

screening; this peripheral area must be vegetation-free.

(2) The sun room shall have a roof, such as a double-mesh-screened

roof or a glass roof, that is both impervious to free-flying birds and

biting insects (such as gnats or mosquitoes) and capable of preventing

contact between chicks and free-flying birds.

(3) Be attended by personnel working in the bird (chick) holding

area whenever chicks are in the sun room.

* * * * *

(3) Operational procedures. The following procedures shall be

observed at the facility at all times.

(i) * * *

(A) * * *

(3) Shower when entering and leaving any bird holding area, any

incubator/hatcher area, and any necropsy area. Showering when moving

between the incubator/hatcher area and the bird holding area is not

required when the eggs in the hatching area and the chicks in the

holding area are part of the same lot;

(4) Work exclusively with one lot of birds until the lot's release

from quarantine, and have no contact with other birds or poultry until

the release date.

* * * * *

(ii) * * *

(A) * * *

(1) Hatching eggs of ratites comprising a single lot may be added

to the facility in stages, provided the entire lot has been placed in

the facility no later than 15 days after the arrival of the first

shipment.

(2) If hatching eggs of ratites begin to hatch in the incubator/

hatcher area while ratite chicks from the previously quarantined lot

remain in the bird (chick) holding area, then the separate lots assume

the status of a single lot, and will be released from quarantine in

accordance with paragraph (c)(3)(ii)(A) of this section.

* * * * *

(5) Cooperative and Trust Fund Agreement for services required by

importer at a privately owned bird quarantine facility.

(i) When the Administrator determines that a privately owned bird

quarantine facility meets the requirements set forth in paragraph (c)

of this section, the Department and the importer shall execute a

Cooperative and Trust Fund Agreement, as specified in paragraph

(c)(5)(iii) of this section. In conjunction with the Cooperative and

Trust Fund Agreement, the importer shall deposit with the Administrator

a money order or cashier's check in an amount determined by the

Administrator to cover all costs incurred by the Department in

providing services in accordance with the provisions of the Cooperative

and Trust Fund Agreement. Any unobligated funds will, upon request, be

returned to the importer, after the birds' release from quarantine.

(ii) The Administrator may provide services required by the

importer at a privately owned quarantine facility for the importation

of birds on a first come, first served basis, if adequate APHIS

personnel are available to provide those services, upon determining

that the importer has executed a Cooperative and Trust Fund Agreement,

and has deposited funds in an amount determined by the Administrator to

be sufficient to cover all costs incurred by the Department in

providing services in accordance with that agreement, as specified in

paragraph (c)(5)(iii) of this section.

(iii) * * *

(A) * * *

(19) To deposit with the Service, upon execution of this

agreement, a money order or cashier's check, in an amount determined

by the Administrator to be sufficient to defray all costs incurred

by the Service in providing services required. If such costs exceed

the deposited amount, the importer will pay for additional costs

incurred, based on official accounting records, within 14 days of

receipt of the bill showing the balance due.

* * * * *

(B) * * *

(2) To issue permits 3 working days following receipt of the

permit application, depending upon the availability of personnel to

provide the services required for quarantine and the results of an

APHIS representative's inspection of the quarantine facility.

* * * * *

Done in Washington, DC, this 9th day of September 1994.

Terry L. Medley,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 94-22719 Filed 9-13-94; 8:45 am]

BILLING CODE 3410-34-P