Brucellosis; Increased Indemnity for Cattle and Bison

Federal RegisterMar 31, 1998

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 51

[Docket No. 98-016-1]

Brucellosis; Increased Indemnity for Cattle and Bison

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the regulations governing Federal indemnity

paid under the brucellosis eradication program to increase the amount

of indemnity that may be paid for certain cattle and bison destroyed

because of brucellosis. This action will accelerate the eradication of

brucellosis from the United States by giving owners sufficient

financial incentive to destroy brucellosis-exposed cattle and bison by

promptly depopulating brucellosis-affected herds. A number of owners of

cattle and bison are reluctant to depopulate their affected herds,

thereby increasing the risk of disease spread in the eradication

program's last scheduled year.

DATES: Interim rule effective March 24, 1998. Consideration will be

given only to comments received on or before June 1, 1998.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 98-016-1, Regulatory Analysis and Development, PPD, APHIS,

suite 3C03, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 98-016-1. Comments

received may be inspected at USDA, room 1141, South Building, 14th

Street and Independence Avenue SW., Washington DC, between 8 a.m. and

4:30 p.m., Monday through Friday, except holidays. Persons wishing to

inspect comments are requested to call ahead on (202) 690-2817 to

facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Dr. R. T. Rollo, Staff Veterinarian,

National Animal Health Programs, VS, APHIS, 4700 River Road, Unit 36,

Riverdale, MD 20737-1231, (301) 734-7709.

SUPPLEMENTARY INFORMATION:

Background

Brucellosis is a contagious disease affecting animals and humans

caused by bacteria of the genus Brucella. In humans, brucellosis

initially causes flulike symptoms, but the disease may develop into a

number of chronic conditions, such as arthritis. In cattle and bison,

brucellosis causes, among other things, decreased milk production,

weight loss, and loss of young through abortion or birth of weak

calves. Humans can be treated for brucellosis with antibiotics; there

is no feasible means of curing brucellosis in animals.

Brucellosis is commonly transmitted to susceptible animals by

direct contact with infected animals. The disease is also transmitted

to susceptible animals in contact with an environment that has been

contaminated by discharges from infected animals. Infected pregnant

cows may discharge billions of Brucella bacteria at calving or

abortion. Although it is not common, infected bulls can spread the

disease to cows during breeding. Because brucellosis is transmitted by

sexually intact animals, steers and spayed heifers do not pose a risk

of transmitting brucellosis.

The regulations in part 78 of title 9 of the Code of Federal

Regulations (CFR) govern the interstate movement of cattle, bison, and

swine to help prevent the interstate spread of brucellosis. The

regulations are part of a cooperative Federal and State program,

administered by the Animal and Plant Health Inspection Service (APHIS),

U.S. Department of Agriculture (USDA), to eradicate brucellosis from

the United States. Program officials are striving to eradicate the

field strain of Brucella abortus from domestic cattle and bison herds

by December 1998. The regulations in part 78 provide, among other

things, a system for classifying States or portions of States (areas)

according to the rate of B. abortus infection present and the general

effectiveness of the brucellosis control and eradication program

conducted in the State or area. The classifications are Class Free,

Class A, Class B, Class C, and quarantined States or areas. Quarantined

States or areas indicate States or areas with the highest rates of

brucellosis infection, and Class Free States or areas are those in

which there have been no findings of brucellosis infection for the 12

months preceding classification. As of March 1998, there were only 9

known affected cattle herds and 1 known affected bison herd, and APHIS

had declared 41 States, Puerto Rico, and the U.S. Virgin Islands free

of the disease. The nine remaining States are all Class A States.

The basic approach to brucellosis eradication in cattle and bison

has been to test cattle and bison for infection and send infected and

exposed animals to slaughter. Brucellosis-exposed cattle and

brucellosis-exposed bison have a high probability of contracting

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brucellosis, and may, in fact, be contagious before they react to an

official test for brucellosis. The incubation period varies: Usually,

cattle and bison develop a positive reaction to the blood test for

brucellosis within 2 to 12 weeks after infection, but some may not do

so for 8 months or longer. Meanwhile, any exposed sexually intact

cattle and bison are potential transmitters of the disease. Because the

continued presence of brucellosis in a herd seriously threatens the

health of animals in that herd and other herds, the prompt destruction

of brucellosis-affected cattle or bison is critical.

To encourage destruction of sexually intact cattle and bison

infected with or exposed to brucellosis, USDA offers indemnity to

certain owners. The regulations in 9 CFR part 51 (referred to below as

the regulations) provide for payment of Federal indemnity to owners of

certain animals destroyed because of brucellosis. Paragraphs (a)(1)

through (a)(4) of Sec. 51.3 of the regulations, ``Payment to owners for

animals destroyed,'' pertain to cattle and bison. According to

Sec. 51.3(a), the APHIS Administrator may authorize the payment of

Federal indemnity by the USDA to any owner whose cattle or bison are

destroyed as affected with brucellosis. Specifically, in accordance

with paragraphs (a)(1) through (a)(4), the APHIS Administrator may

authorize the payment of Federal indemnity by the USDA to any owner:

Whose cattle or bison are destroyed as brucellosis reactors, whose herd

of cattle or bison is destroyed because the Administrator has

determined that destruction of all cattle and bison in the herd will

contribute to the brucellosis eradication program, whose exposed female

calf or calves are destroyed because of brucellosis, and who has

brucellosis-exposed cattle or bison destroyed that were previously sold

or traded from any herd that has, subsequent to the sale or trade, been

found to be affected with brucellosis.

Currently, Sec. 51.3 (a)(1) through (a)(4) allow, with a few

exceptions, the following maximum per-head amounts for Federal

indemnity:

(1) For reactors that are not part of a whole-herd depopulation:

$250 for registered cattle and nonregistered dairy cattle and $50 for

bison and nonregistered cattle other than dairy cattle.

(2) For cattle and bison in herds approved for depopulation:

In States other than Class Free States: $250 for any

nonregistered cattle other than dairy cattle; $250 for bison; and the

lesser of 95 percent of appraised value, minus salvage value, or $750,

for any registered cattle or nonregistered dairy cattle.

In Class Free States: For any registered cattle,

nonregistered dairy cattle, and any cattle or bison from herds affected

with brucellosis, the lesser of 95 percent of appraised value, minus

salvage value, or $750.

(3) For sexually intact exposed female calves: $50 (except for

sexually intact female calves destroyed as part of a whole-herd

depopulation, in which case the owners of such calves would receive the

amounts listed in (2) above).

(4) For exposed cattle and bison sold or traded from a herd that

has subsequently been found to be affected with brucellosis: $250 for

registered cattle and nonregistered dairy cattle and $150 for bison and

nonregistered cattle other than dairy cattle.

The regulations also include different indemnity rates for certain

types of animals approved for indemnity under the brucellosis

eradication program in Alaska, Hawaii, Puerto Rico, and the U.S. Virgin

Islands because transportation costs to those locations make market

prices for replacement animals higher than for animals in the

contiguous United States.

Without sufficient financial incentive to destroy exposed animals

or depopulate affected herds, many owners prefer to quarantine exposed

animals or, when the exposed animals in a herd cannot be isolated, the

entire herd. Quarantining is a lengthy and expensive process for both

an owner and the USDA. The USDA has to pay to have the quarantined herd

tested periodically, until the herd is found to be free of brucellosis,

and the owner may not sell or move any animals while they are under

quarantine, except for slaughter, which provides less revenue than

sales for breeding purposes.

To provide additional financial incentive for owners to choose

depopulation when USDA offers to pay indemnity for destruction of a

herd, we are amending Sec. 51.3 (a)(1) through (a)(4). The amendments

change the method of determining the indemnity to be paid for all

cattle and bison destroyed under the program, except for individual

reactors and sexually intact exposed female calves that are not part of

a whole-herd depopulation. Under this rule, the Administrator may

authorize the payment of indemnity by USDA to any owner of the

following animals destroyed under the brucellosis eradication program:

(1) Cattle and bison identified as reactors as a result of a complete

herd test and any sexually intact exposed female calves (defined in

Sec. 51.1 as ``a female bovine less than 6 months of age that is nursed

by a brucellosis reactor at the time such reactor is condemned, and

that has not been altered to make it incapable of reproduction''), (2)

cattle and bison in a herd that has been approved by APHIS for

depopulation, and (3) brucellosis-exposed cattle and bison that were

previously sold or traded from any herd that has, subsequent to the

sale or trade, been found to be affected with brucellosis. In the case

of the brucellosis-exposed cattle and bison, epidemiological

information such as test results, herd history, and related evidence

would be used to establish a probable date when the herd was first

affected with brucellosis. Animals sold after that date would be

considered to be exposed; those sold before that date would not.

Also under this rule, all owners of cattle and bison offered

Federal indemnity, except owners of cattle and bison reactors and any

sexually intact exposed female calves identified as a result of a

complete herd test and destroyed other than as part of a whole-herd

depopulation, may choose one of two methods, described below, for

determining the indemnity amounts. The method chosen must be used for

all animals to be destroyed. Owners that destroy cattle and bison

reactors and sexually intact exposed female calves other than as part

of a whole-herd depopulation are eligible to receive fixed rates for

their animals: $250 for any registered cattle and nonregistered dairy

cattle and $50 for any bison, nonregistered cattle other than dairy

cattle, or sexually intact exposed female calves. Owners that destroy

cattle and bison in herds approved for depopulation or brucellosis-

exposed cattle and bison that meet the conditions described above may

choose the appraisal method or fixed-rate method for determining the

indemnity amounts. Under the appraisal method, each eligible animal

will be appraised to determine its fair market value, and the indemnity

shall be the appraised value minus the salvage value. Under the fixed-

rate method, the indemnity will not exceed $250 per animal.

Owners have the option of having an appraisal done prior to

choosing the method used. Appraisals will be conducted by an

independent appraiser selected by the APHIS Administrator, and the cost

of the appraisals will be borne by APHIS. In all cases, the amount of

Federal indemnity will be determined in accordance with the regulations

in 9 CFR part 51 that were in effect on the date that reactors were

found or the date that depopulation or removal of individual exposed

animals was approved. Prior to payment of

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indemnity, proof of destruction 1 must be furnished to the

Veterinarian in Charge.

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\1\ The Veterinarian in Charge shall accept any of the following

documents as proof of destruction: (a) A postmortem report; (b) a

meat inspection certification of slaughter; (c) a written statement

by a State representative, APHIS representative, or accredited

veterinarian attesting to the destruction of the animal; (d) a

written, sworn statement by the owner or caretaker of the animal

attesting to the destruction of the animal; (e) a permit (VS Form 1-

27) consigning the animal from a farm or livestock market directly

to a recognized slaughtering establishment; or (f) in unique

situations where the documents listed above are not available, other

similarly reliable forms of proof of destruction.

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In accordance with Sec. 51.3 of the regulations, the Administrator

shall authorize the maximum per-head amount for animals approved for

indemnity under the brucellosis eradication program unless: (1)

Sufficient funds are not available, (2) the State or area in which the

animal is located is under Federal quarantine, (3) the State does not

request payment of Federal indemnity, or (4) the State requests a rate

lower than the maximum. The total compensation that APHIS will provide

in fiscal year 1998 will be limited by available appropriated funding

and will not exceed $3.41 million on a nationwide basis.

We are making these changes to the regulations at this time for

many reasons, including accomplishing the regulatory reform goal of

simplifying the regulations so that owners of brucellosis-affected

animals can easily determine eligibility of their animals for indemnity

and the maximum allowable indemnity rates. More importantly, program

officials are striving to reach the goal of eradicating brucellosis

from domestic cattle and bison herds by the end of 1998. As of March

1998, only 10 herds in the United States (9 cattle herds in Texas and 1

bison herd in South Dakota) remained under quarantine for brucellosis.

We believe that depopulation of all affected herds is the most

effective way to achieve eradication and prevent spread of the disease

to unaffected herds. However, at the current indemnity rates specified

in the regulations, some owners of affected herds are reluctant to

depopulate their herds. Destruction of all affected animals is

especially critical at this time as the program is in its last

scheduled year, and severe funding cuts are expected next year. This

rule provides an economic incentive for the timely removal of

brucellosis-exposed animals from any herd, thus minimizing the risk of

those animals spreading brucellosis to a new herd.

We want to encourage owners to depopulate entire herds when program

officials have determined that such action is appropriate. By offering

owners of affected herds the opportunity to receive fair market value

for their animals, we believe that more owners will choose to

depopulate their herds, rather than maintain their herds under

quarantine. We are excluding reactors and sexually intact exposed

female calves not destroyed as part of a whole-herd depopulation from

the new system of determining indemnity rates to encourage owners to

depopulate affected herds rather than remove individual reactors and

sexually intact exposed female calves for destruction and maintain the

rest of the herd under quarantine. Under this rule, owners of reactors

and sexually intact exposed female calves destroyed as part of a whole-

herd depopulation may choose to receive the appraised value, minus the

salvage value realized, for these animals as they could for any other

animal in their herd. Owners who choose not to depopulate herds

containing reactors or sexually intact exposed female calves, but

instead remove and destroy those animals only, will receive the fixed

rates described previously in this document: For reactors, $250 for any

registered cattle and nonregistered dairy cattle and $50 for any bison,

nonregistered cattle other than dairy cattle, and sexually intact

exposed female calves.

We are also making provision in this rule to increase the amount of

indemnity offered to owners for certain brucellosis-exposed cattle and

bison. When an epidemiological investigation reveals that certain

animals in a herd were obtained from a herd that was, subsequent to the

sale or trade, determined to be affected with brucellosis, a complete

herd test is performed of the herd into which the animals from the

affected herd were introduced. If the complete herd test reveals

negative test results for the entire herd, including the newly

introduced animals, program officials generally want to remove those

newly introduced animals from the herd anyway because they could be

incubating the disease, but program officials might not recommend

depopulation of the entire herd at that point. (Whole-herd depopulation

could become advisable at a later date if subsequent herd tests reveal

brucellosis infection or if so indicated by further epidemiological

investigation.) Therefore, we want to be able to offer a financial

incentive to the owner to destroy the animals introduced from the

affected herd as soon as possible.

We are also adding to Sec. 51.1 definitions for ``appraisal'' and

``complete herd test.'' These terms are used in Sec. 51.3(a) as revised

by this rule, and defining these terms is important for clarity and

accuracy in interpreting the regulations.

Immediate Action

The Administrator of the Animal and Plant Health Inspection Service

has determined that there is good cause for publishing this interim

rule without prior opportunity for public comment. Immediate action is

necessary to prevent the spread of brucellosis. The brucellosis

eradication program is in its final critical stage with program

officials striving for completion by December 1998. Depopulation of all

remaining affected herds is the most effective means of achieving

eradication. Owners of affected animals must be offered sufficient

financial incentive to destroy their affected animals. Under the

indemnity rates in effect prior to this interim rule, some owners have

been reluctant to depopulate their herds. Maintaining these herds under

quarantine is expensive for the Federal Government, which must bear the

cost of testing them periodically, and, more importantly, allows the

infection to remain in the cattle and bison herds, and potentially to

spread to other herds.

Because prior notice and other public procedures with respect to

this action are impracticable and contrary to the public interest under

these conditions, we find good cause under 5 U.S.C. 553 to make it

effective upon signature. We will consider comments that are received

within 60 days of publication of this rule in the Federal Register.

After the comment period closes, we will publish another document in

the Federal Register. It will include a discussion of any comments we

receive and any amendments we are making to the rule as a result of the

comments.

Executive Order 12866 and Regulatory Flexibility Act

This 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 emergency situation makes compliance with section 603 and

timely compliance with section 604 of the Regulatory Flexibility Act (5

U.S.C. 601 et seq.) impracticable. If we determine that this rule would

have a significant economic impact on a substantial number of small

entities, then we will discuss the issues raised by section 604

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of the Regulatory Flexibility Act in our Final Regulatory Flexibility

Analysis.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic

Assistance under No. 10.025 and is subject to Executive Order 12372,

which requires intergovernmental consultation with State and local

officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil

Justice Reform. This rule: (1) Preempts all State and local laws and

regulations that are in conflict with this rule; (2) has no retroactive

effect; and

(3) does not require administrative proceedings before parties may

file suit in court challenging this rule.

Paperwork Reduction Act

This rule contains no new information collection or recordkeeping

requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.).

List of Subjects in 9 CFR Part 51

Animal diseases, Cattle, Hogs, Indemnity payments, Reporting and

recordkeeping requirements.

Accordingly, 9 CFR part 51 is amended as follows:

PART 51--ANIMALS DESTROYED BECAUSE OF BRUCELLOSIS

1. The authority citation for part 51 continues to read as follows:

Authority: 21 U.S.C. 111-113, 114, 114a, 114a-1, 120, 121, 125,

and 134b; 7 CFR 2.22, 2.80, and 371.2(d).

2. Section 51.1 is amended by adding definitions, in alphabetical

order, for Appraisal and Complete herd test to read as follows:

Sec. 51.1 Definitions.

* * * * *

Appraisal. An estimate of the fair market value of an animal to be

destroyed because of brucellosis. The estimate shall be based upon the

meat, dairy, or breeding value of the animal.

* * * * *

Complete herd test. An official test for brucellosis (as defined in

9 CFR 78.1) performed under APHIS supervision in a cattle or bison herd

on all cattle or bison that are (1) 6 months of age or more and not

official vaccinates, except steers and spayed heifers; or (2) Official

calfhood vaccinates of any age that are parturient or postparturient;

or (3) Official calfhood vaccinates of beef breeds or bison with the

first pair of permanent incisors fully erupted (2 years of age or

more); or (4) Official calfhood vaccinates of dairy breeds with partial

eruption of the first pair of permanent incisors (20 months of age or

more).

* * * * *

3. In Sec. 51.3, paragraph (a) is revised to read as follows:

Sec. 51.3 Payment to owners for animals destroyed.

(a) Cattle and bison. The Administrator may authorize the payment

of Federal indemnity by the U.S. Department of Agriculture to any owner

whose cattle or bison are destroyed after having been approved for

destruction by APHIS under the brucellosis eradication

program.3 In all cases, the amount of Federal indemnity will

be determined in accordance with the regulations in this part that were

in effect on the date that reactors were found or the date that whole-

herd depopulation or destruction of individual animals was approved.

Prior to payment of indemnity, proof of destruction 4 must

be furnished to the Veterinarian in Charge.

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\3\ ``The Administrator shall authorize payment of Federal

indemnity by the U.S. Department of Agriculture at the maximum per-

head rates in Sec. 51.3: (a) As long as sufficient funds

appropriated by Congress appear to be available for this purpose for

the remainder of the fiscal year; (b) in States or areas not under

Federal quarantine; (c) in States requesting payment of Federal

indemnity; and (d) in States not requesting a lower rate.

\4\ The Veterinarian in Charge shall accept any of the following