Importation of Ratites and Hatching Eggs of Ratites

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 92

[Docket No. 93-137-3]

Importation of Ratites and Hatching Eggs of Ratites

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, with several changes, an

interim rule that amended the regulations regarding the importation of

ratites and hatching eggs of ratites. In this final rule, we are adding

identification and certification requirements to those established by

the interim rule. This action is necessary to help ensure that ratites

and hatching eggs of ratites that could pose a disease risk to poultry

and livestock in the United States are not imported into this country.

EFFECTIVE DATE: October 17, 1994.

FOR FURTHER INFORMATION CONTACT: Dr. Keith 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) 436-5907.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 9 CFR part 92 (referred to below as the

regulations) regulate the importation of certain animals and birds,

including ostriches and other flightless birds known as ratites, and

their hatching eggs, to prevent the introduction of communicable

diseases of livestock and poultry.

In an interim rule effective and published in the Federal Register

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

the regulations by providing that ratites and hatching eggs of ratites

may not be imported into the United States unless specified

identification and recordkeeping requirements regarding their origin

and movement are met in the country of export.

We solicited comments concerning the interim rule for a 60-day

comment period ending May 9, 1994. On July 5, 1994, we published in the

Federal Register a notice (59 FR 34375, Docket No. 93-137-2) reopening

and extending the comment period until July 20, 1994. We received a

total of 10 comments on or before July 20. The commenters included

ratite industry associations, a veterinary association, individual

members of the general public, and representatives of foreign

governments. Five of the commenters supported the rule as written. The

other commenters either opposed the rule or suggested modifications to

it. We discuss these comments below.

One commenter objected to the fact that ratites may be imported

only from countries in which the national government maintains a

registry of premises where ratites or ratite hatching eggs are produced

for export to the United States. The commenter stated that prohibiting

the importation of ratites and ratite hatching eggs from countries that

do not meet this requirement will deny Americans access to imports, and

might ultimately lead to those countries' erecting trade barriers with

the United States. The commenter suggested that the restrictions on

importation should apply only to those countries in which smuggling has

been demonstrated to have occurred. We are making no changes based on

this comment. International trade in ratites and their hatching eggs

often involves transhipping birds and eggs among several countries.

Without the identification and recordkeeping requirements established

by the interim rule, it is difficult to ensure that ratites and

hatching eggs of ratites imported into the United States are from pen-

raised flocks.

One commenter stated that the interim rule was not warranted by the

incidence of disease found in imported ratites. According to the

commenter, since the reinstatement of ratite importation [56 FR 31856-

31868, Docket No. 90-147, published in the Federal Register July 12,

1991 and made effective August 12, 1991], no ostriches have been

refused entry due to illness, two shipments of emus have been denied

entry due to the detection of Salmonella, and one shipment of

cassowaries and emus was denied entry due to the detection of an H5

strain of avian influenza. We are making no changes based on this

comment. As we stated in the background information of our interim

rule, we consider the quarantine requirements that were in place prior

to the interim rule to be effective in identifying and preventing the

entry of ratites with communicable diseases. However, as we also stated

in our interim rule, the increased risk presented by smuggled or wild-

caught ratites jeopardizes the health of other ratites in quarantine

and unnecessarily increases the risk of the entry of a ratite with a

communicable disease.

Several commenters objected to the requirement that ratites

produced in a flock from which ratites or hatching eggs of ratites are

intended for importation into the United States be identified with an

identification number by means of a microchip implanted in the pipping

muscle at 1-day of age. One commenter stated that, although ostriches

at birth have a relatively large neck and a bulbous pipping muscle, emu

and rhea chicks have very slender necks with no visible pipping muscle,

and are too small at birth to safely undergo implantation of a

microchip. We do not agree that a microchip cannot be safely implanted

in newly hatched emus and rheas. However, we agree with the commenter

that the bulbous pipping muscle of the ostrich is not present in emus

and rheas. Therefore, we are amending the regulations at

Sec. 92.101(b)(3)(i)(B) to require that a microchip be implanted in the

pipping muscle of each ostrich produced in a flock from which ratites

or hatching eggs of ratites are intended to be imported into the United

States, and that a microchip be implanted in the upper neck of ratites

other than ostriches. We consider it necessary to implant the microchip

in either the pipping muscle or the upper neck to facilitate reading of

the microchip.

Another commenter recommended that if the microchip is not

implanted in the pipping muscle, the exact location of the microchip

should be indicated on a stock registry, on an export certificate, and

on an external form of identification on the ratite. We do not consider

such information necessary if the microchip is implanted as discussed

in the preceding paragraph.

One commenter also recommended that, for what the commenter termed

``practical reasons,'' microchipping be required not when the chick is

1-day of age, but rather either within 1 day of the chick leaving the

hatcher or, in the event of natural breeding and hatching, within 7

days of the chick's hatching. We are making no changes based on this

comment. We consider microchipping at the earliest possible date after

hatching necessary to enable inspectors to ensure that all ratites in a

flock are properly identified and are entered in the flock's register.

We are unaware of any reason such microchipping cannot be done when the

chicks are 1-day of age.

One commenter suggested that the Animal and Plant Health Inspection

Service (APHIS) should specify a location for implantation of

microchips on older birds as well as chicks. The commenter stated that

if ratites at some time become a source of food, it will be necessary

to locate and remove the microchips, and that a standard location for

implantation will facilitate that removal. We are making no changes

based on this comment. Our experience enforcing the regulations has

shown that relatively few ratites other than hatching eggs and chicks

are imported into the United States. Those that are imported cannot at

present be used for food, under U.S. Environmental Protection Agency

regulations, because they are required by APHIS to be treated with a

pesticide. Some of the relatively few older ratites imported into the

United States, particularly emus, have already been microchipped by

their owners for security purposes. These microchips have often been

implanted other than in the neck of the ratites, and we do not believe

it is necessary to require that the ratites be microchipped a second

time.

One commenter stated that the issue of the potential migration of

implanted microchips within ratites should be evaluated. We recognize

the possibility of the migration of an implanted microchip within a

ratite. At this time, however, we consider microchip implantation to be

the most reliable practical means of identifying ratites. Should an

implanted microchip migrate from the area of implantation, it can still

be located and read, although with greater difficulty than if it had

not migrated. We recognize that it is possible that more effective

means of identification may be developed in the future, and we will

evaluate each method of identification as it is developed and tested.

One commenter stated that, although using microchips for

identification of ratites is more effective than banding the ratites,

the only sure way of identifying ratites is through ``DNA

fingerprinting,'' by having a blood sample analyzed at a laboratory.

The commenter stated that microchips can be removed from one bird and

placed in another, can migrate in a bird's body, and can become

inactivated due to bumping or other harsh action. According to the

commenter, DNA fingerprinting could be done as needed, with a certain

number of ``fingerprints'' done randomly to ensure that breeders and

importers are ``kept honest.'' We are making no changes based on this

comment. Although we agree that ``DNA fingerprinting'' can be an

effective means of identification, it does not offer the necessary

speed of identification provided by microchipping.

Our interim rule contained a requirement that each hatching egg

produced in a flock from which ratites or hatching eggs of ratites are

intended to be imported into the United States be marked in indelible

ink with the date of production. One commenter recommended that these

hatching eggs also be marked with a code identifying the premises of

origin. We agree that such an identifying code would help ensure that

hatching eggs have originated in the flock indicated on the export

certificate, and we believe it would further aid identification of

hatching eggs if each egg is identified as to the country of the flock

of origin. Therefore, we are amending Sec. 92.101(b)(3)(i)(C) to

require that, on the date it is produced, each hatching egg produced in

the flock be marked with indelible ink with the date of production, and

also be identified with indelible ink as to the country and the

premises of the flock of origin. This identification must be in a form

assigned by the national government of the country in which the flock

is located.

One commenter recommended that the regulations require that

microchip readers provided to APHIS inspectors at the intended port of

entry be capable of reading microchips produced by different

manufacturers, so that APHIS inspectors would not have to maintain a

number of different readers. We are making no changes based on this

comment. Although we encourage standardization of microchips and

readers, even if such standardization does not occur, it will not be

necessary for APHIS inspectors to maintain a number of readers. Under

the regulations, each importer of ratites is responsible for providing

to APHIS inspectors the reader compatible with the microchips used for

identification.

Our interim rule included a requirement that a production ceiling

for each premises be set, based on the number of eggs the ratites in a

flock could reasonably be expected to produce over a given production

season. We defined production season as that period of time, usually

approximately 9 months each year, from the time ratites in a flock

begin laying eggs until the ratites cease laying eggs. We stated in the

background information to the interim rule that ratites by nature

follow a set cycle for laying eggs, and, for reasons of health and

productivity, must be given a period of rest between production

seasons. One commenter disagreed with our definition of production

season, and stated that a compulsory ``rest period'' is not necessary,

because some farmers might deliberately manage their flocks in such a

way as to export eggs throughout the entire year. We are making no

changes based on this comment. Our definition of production season does

not require a rest period. It merely describes what is standard

practice in the ratite industry. However, it should be noted that

Sec. 92.101(b)(3)(i)(H) prohibits the addition of ratites to a flock

during a production season. Therefore, a ``rest period'' is necessary

if an owner wishes to add ratites to his or her flock from outside the

flock.

Our interim rule included a requirement that the owner or manager

of a premises from which ratites or hatching eggs of ratites are

intended for importation into the United States maintain on a daily

basis a register of the numbers of ratites and hatching eggs in the

flock and the identification of the ratites. The interim rule required

further that the owner or manager submit these registers to the

National Veterinary Service of the country of export on a quarterly

basis, and that the national government in turn submit a copy of the

registers to the APHIS Administrator on a quarterly basis. One

commenter stated that these registers will be of no use to the APHIS

Administrator because, under the regulations, ratites from outside a

flock may not be added to that flock during a production period. We do

not agree that copies of the registers would be of no use to APHIS. A

copy of a register would be useful to APHIS in those cases where there

is some question as to whether a premises has exceeded its production

ceiling. However, we agree it will not be necessary for APHIS to

examine copies of registers in all cases. Therefore, in this final

rule, we are amending Sec. 92.101(b)(3)(i)(E) to remove the requirement

that registers be submitted on a quarterly basis, and to require,

instead, that the National Veterinary Service of the country of export

make copies of the registers available upon request to the

Administrator.

Under Sec. 92.101(b)(3)(i)(J) of the regulations established by the

interim rule, when the National Veterinary Service of the country of

export submits to APHIS copies of registers on a quarterly basis, it

also must indicate whether all ratites and hatching eggs of ratites on

a premises are identified as required. Because in this final rule we

are removing the requirement that registers be submitted on a quarterly

basis, we are also removing the requirement in Sec. 92.101(b)(3)(i)(J)

that the country of export indicate on a quarterly basis whether all

ratites and hatching eggs of ratites are identified as required.

However, as required by the interim rule, some of this information is

available to APHIS through other certification. In Secs. 92.104(c) and

(d), an export certificate must include, among other things,

certification that all ratites in the flock of origin have been

identified as required. In this final rule, we are adding to

Secs. 92.104(c) and (d) the requirement that the export certificate

also include certification that all hatching eggs in the flock of

origin have been marked as required.

One commenter, a representative of a country from which ratites and

hatching eggs of ratites are imported into the United States, stated

that it is important to reduce the annual ceiling for a flock if laying

ratites are removed from the premises. We agree that, because the

production ceiling for a flock is dependent on the number of ratites

mature enough to lay eggs, the ceiling should be reduced if laying hens

are removed from the flock. We are therefore adding to

Secs. 92.104(c)(15) and (d)(11) the requirement that the export

certificate that accompanies shipments of ratites or hatching eggs of

ratites to the United States indicate the number of ratite laying hens

in the flock of origin. We are also revising Sec. 92.101(b)(3)(i)(I) to

require that the production ceiling be adjusted according to changes in

the number of laying hens in the flock.

One commenter stated that the keeping of a control register for

identification of ratites should not necessarily be the responsibility

of the official veterinary authority of the country of exportation, but

should instead be allowed to be the responsibility of a recognized

body, as agreed upon by the APHIS Administrator. It is not clear to us

what type of ``recognized body'' the commenter is referring to. We do

not consider it appropriate for an entity other than an agency of the

national government of the country of export to maintain the required

registry. Under the regulation as written, a government agency other

than the official veterinary authority is not precluded from

maintaining the registry of premises that wish to export ratites or

hatching eggs of ratites to the United States. Therefore, we are making

no changes based on this comment.

Several commenters addressed issues outside the scope of the

interim rule, concerning functions required to be carried out by

veterinarians in the country from which the ratites or hatching eggs

are to be exported. The functions the commenters addressed were already

required under the regulations prior to publication of the interim

rule.

Miscellaneous

We are making a wording correction to Sec. 92.104(c)(14). The

provisions in Sec. 92.104(c) pertain to ratites other than hatching

eggs that are intended for importation into the United States. However,

in Sec. 92.104(c)(14) of our interim rule, we made reference to

``hatching eggs'' when our intent, consistent with the rest of

Sec. 92.104(c), was to refer to ``ratites.'' In this final rule, we are

correcting this reference.

In this final rule, we are also making several nonsubstantive

changes to part 92, to update addresses in footnotes and to correct an

incorrect paragraph reference.

Therefore, based on the rationale set forth in the interim rule and

in this document, we are adopting the provisions of this interim rule

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

Executive Order 12866 and Regulatory Flexibility Act

This final 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.

This final rule requires that foreign producers of ratites or

ratite hatching eggs intended for importation into the United States

identify all ratite eggs in the flock as to premises and country. It

also requires that such identification be certified on an export

certificate, that the export certificate also indicate the number of

ratite laying hens in the flock, and that the production ceiling for a

flock be adjusted according to changes in the number of laying hens in

the flock.

At present 99 ratite farms in 13 countries are approved to ship

ratites or ratite hatching eggs to the United States. The number of

approved foreign farms varies each month due to annual recertification

requirements.

We anticipate that requiring the identification and certification

set forth in this rule will have little or no economic impact. Hatching

eggs must already be marked on the premises of origin as to date of

production. The additional cost to also identify the hatching eggs as

to premises and country is expected to be negligible. Also, the

certification required by this rule is in addition to certification

already required on an export certificate, and is expected to have

little or no economic impact.

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 inconsistent 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.

et seq.), the information collection or recordkeeping requirements

included in this rule have been submitted for approval to the Office of

Management and Budget.

List of Subjects in 9 CFR Part 92

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

Quarantine, Reporting and recordkeeping requirements.

Accordingly, the interim rule amending 9 CFR part 92 that was

published at 59 FR 10729-10734 on March 6, 1994, is adopted as a final

rule with the following changes:

PART 92--IMPORTATION OF CERTAIN ANIMALS 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).

2. In Sec. 92.101, paragraphs (b)(3)(i)(B) and (b)(3)(i)(C), the

second sentence of (b)(3)(i)(E), and the second sentence of

(b)(3)(i)(I) are revised to read as set forth below; paragraph

(b)(3)(i)(J) is amended by removing the reference to ``(b)(3)(i)(D) and

(b)(3)(i)(E)'' and adding ``(b)(3)(i)(B) and (b)(3)(i)(C)'' in its

place; and paragraph (b)(3)(i)(J) is amended by removing the word

``quarterly'' in the last sentence.

Sec. 92.101 General prohibitions; exceptions.

* * * * *

(b) * * *

(3) * * *

(i) * * *

(B) Each ratite produced in the flock is identified with an

identification number by means of a microchip implanted at 1-day of age

in the pipping muscle of ostriches and in the upper neck of other

ratites, each ratite added from outside the flock is identified in like

manner upon arrival in the flock, except that the microchip need not be

implanted in the pipping muscle or the upper neck, and each ratite

already in the flock as of March 8, 1994 is identified in like manner,

prior to the next visit to the flock premises by an APHIS

representative under Sec. 92.103(a)(2)(iii), except that the microchip

need not be implanted in the pipping muscle or the upper neck;

(C) On the date it is produced, each hatching egg produced in the

flock is marked in indelible ink with the date of the production, and

with identification, assigned by the national government of the country

of export, of the premises and country from which the ratites or

hatching eggs are intended for exportation;

* * * * *

(E) * * * The country of export in turn submits a copy of the

registers to the Administrator upon his or her request;2

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\2\Copies should be mailed to Administrator, c/o Import/Export

Animals Staff, National Center for Import-Export, Veterinary

Services, APHIS, USDA, Federal Building, 6505 Belcrest Road,

Hyattsville, MD 20782.

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* * * * *

(I) * * * The ceiling for each premises is calculated jointly by a

full-time salaried veterinary officer of the national government of the

country of export and the APHIS representative who conducts the site

visit required under Sec. 92.103(a)(2)(iii), and is adjusted jointly by

an APHIS representative and a full-time salaried veterinary officer of

the national government of the country of export according to changes

in the number of laying hens in the flock;

* * * * *

Sec. 92.103 [Amended]

3. In Sec. 92.103, footnote 9 is revised to read ``The addresses of

USDA quarantine facilities may be found in telephone directories

listing the facilities or by contacting the Administrator, c/o Import-

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

Services, APHIS, USDA, Federal Building, 6505 Belcrest Road,

Hyattsville, MD 20782.''

4. Section 92.104 is amended by redesignating paragraphs (c)(15)

and (c)(16) as paragraphs (c)(16) and (c)(17), respectively; by adding

new paragraphs (c)(15) and (d)(11); and by revising paragraphs (c)(14)

and (d)(10), to read as follows:

Sec. 92.104 Certificate for pet birds, commercial birds, zoological

birds, and research birds.

* * * * *

(c) * * *

(14) That all ratites in the flock from which the ratites come were

identified in accordance with Sec. 92.101(b)(3)(i)(B), and that all

ratite hatching eggs in the flock were identified in accordance with

Sec. 92.101(b)(3)(i)(C);

(15) The number of ratite laying hens in the flock from which the

ratites come;

* * * * *

(d) * * *

(10) That all ratites in the flock from which the hatching eggs

come were identified in accordance with Sec. 92.101(b)(3)(i)(B), and

that all ratite hatching eggs in the flock were identified in

accordance with Sec. 92.101(b)(3)(i)(C).

(11) The number of ratite laying hens in the flock from which the

hatching eggs come.

Sec. 92.106 [Amended]

5. Section 92.106 is amended by revising footnote 11 to read ``A

list of approved vaccines is available from the Administrator, c/o

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

Veterinary Services, APHIS, USDA, Federal Building, 6505 Belcrest Road,

Hyattsville, MD 20782.''

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

Terry L. Medley,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 94-22849 Filed 9-14-94; 8:45 am]

BILLING CODE 3410-34-P