Importation of Poultry Products

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 94

[Docket No. 98-028-2]

Importation of Poultry Products

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations for importing animal products

to allow the importation of poultry carcasses and parts or products of

poultry carcasses from regions where exotic Newcastle disease (END) is

considered to exist if they originated in a region free of END and meet

certain conditions with respect to processing and shipping. This action

removes some restrictions on the importation of poultry products from

regions where END is considered to exist. We believe the conditions for

importation will continue to protect the United States from END.

EFFECTIVE DATE: July 19, 1999.

FOR FURTHER INFORMATION CONTACT: Dr. Michael David, Senior Staff

Veterinarian, Animals and Germplasm Programs, National Center for

Import and Export, VS, APHIS, 4700 River Road Unit 39, Riverdale, MD

20737; (301) 734-5034; or e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Background

The regulations in 9 CFR part 94 govern the importation of certain

animals, birds, poultry, meat, animal products, animal byproducts, hay,

and straw into the United States in order to prevent the introduction

of communicable diseases of livestock and poultry. The regulations in

Sec. 94.6 (referred to below as the regulations) govern, among other

things, the importation of poultry carcasses, parts, and products from

regions where exotic Newcastle disease (END) is considered to exist.

Under the regulations in place when our proposed rule was

published, poultry carcasses and parts or products of poultry carcasses

could be imported into the United States from regions where END was

considered to exist if certain conditions were met, such as the poultry

carcasses were sent to an approved museum, were hermetically sealed and

cooked, or were thoroughly cooked. The regulations were described in

greater detail in the proposed rule.

On December 9, 1998, we published in the Federal Register (63 CFR

67809-67813, Docket No. 98-028-1) a proposal to amend Sec. 94.6 to

allow poultry carcasses and parts or products of poultry carcasses to

be imported into the United States from regions where END is considered

to exist if they originated in a region free of END and meet certain

requirements with respect to processing and shipping.

We solicited comments concerning our proposal for 60 days ending

February 8, 1999. We received six comments by that date. They were from

representatives of State governments, trade associations, and the

scientific community. Four commenters supported the proposed rule. Two

commenters expressed concern that the proposed rule would have negative

effects on the U.S. domestic poultry processing industry. Their

concerns are addressed below.

Comment: The proposed ``system'' of poultry carcass export,

processing, and reimportation cannot be assured to be risk free. There

is no inspection or enforcement system strong enough to ensure that END

will not be introduced into the United States.

Response: If zero tolerance for disease risk were the standard

applied to international trade in agricultural commodities, it is quite

likely that no country would ever be able to export a fresh animal

product to any other country. There will always be some degree of

disease risk associated with the movement of animal products; APHIS'

goal is to reduce that risk to an insignificant level. For the reasons

explained in the proposed rule, we believe that the safeguards

contained in this final rule will reduce the disease risk associated

with the importation of poultry carcasses and parts or products of

poultry carcasses to an insignificant level.

Comment: The current import restrictions for Mexican poultry are

consistent with the United States obligations under the North American

Free Trade Agreement (NAFTA), Article 712.1, and do not require

amendment.

Response: Article 712.1 of NAFTA states.

Each [country] may, in accordance with this Section, adopt,

maintain, or apply any sanitary or phytosanitary measure necessary

for the protection of human, animal, or plant life or health in its

territory, including a measure more stringent than an international

standard, guideline, or recommendation.

While Article 712.1 allows a country to adopt measures more

stringent than an international standard, we believe other NAFTA

Articles, including

[[Page 38549]]

Articles 712.5 and 715.3, obligate us to take this action. Under

Article 712.5:

Each [country] shall ensure that any sanitary or phytosanitary

measure that it adopts, maintains, or applies is applied only to the

extent necessary to achieve its appropriate level of protection . .

.

Further, Article 715.3 states:

Each [country], in establishing its appropriate level of

protection . . . should take into account the objective of

minimizing negative trade effects.

The Mexican Government requested the change we are making in this

rule. This rule will allow poultry carcasses and parts or products of

poultry carcasses from regions that are free of END to be imported into

the United States via another region where END is considered to exist,

provided the meat or other products have been safeguarded as specified

in this rule to prevent contamination. We have determined that such

poultry meat or other poultry products will not present a significant

risk of introducing END into the United States. Therefore, we believe

we are obligated under NAFTA to proceed with this action.

Comment: The major result of the proposal would be to encourage the

export of poultry carcasses from the United States to Mexico for

processing with the finished product returned to the United States for

final sale. The proposal would lead to the establishment of a poultry

processing industry in Mexico, where worker safety and health and

environmental standards are lax.

Response: As stated below in our Final Regulatory Flexibility

Analysis, we cannot determine the extent to which this rule will

encourage, or result in, increased volumes of poultry to be exported

from the United States for processing in Mexico. However, it is likely

that any increased poultry production would be a small percentage of

Mexico's total poultry production. Further, we believe it is highly

unlikely that new processing facilities will be constructed

specifically to process poultry eligible for export to the United

States under this rule, since there is already a large poultry

processing industry in place in Mexico. Because the poultry eligible

for export under this rule would likely be processed in existing

facilities and would represent a small percentage of Mexico's total

production, this rule would likely have a minimal effect on worker

health and safety and the environment.

Therefore, for the reasons given in the proposed rule and in this

document, we are adopting the proposed rule as a final rule, without

change.

Effective Date

This is a substantive rule that relieves restrictions and, pursuant

to the provisions of 5 U.S.C. 553, may be made effective less than 30

days after publication in the Federal Register. This action removes

some restrictions on the importation of poultry products from regions

where END is considered to exist. Therefore, the Administrator of the

Animal and Plant Health Inspection Service has determined that this

rule should be effective upon publication in the Federal Register.

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.

In accordance with 5 U.S.C. 604, we have performed a Final

Regulatory Flexibility Analysis, which is set out below, regarding the

economic effects of this rule on small entities.

This rule amends the regulations for importing animal products to

allow the importation of poultry carcasses and parts or products of

poultry carcasses from regions where exotic Newcastle disease (END) is

considered to exist if they originated in a region free of END and meet

certain conditions with respect to processing and shipping. This rule

removes some restrictions on the importation of poultry carcasses and

parts or products of poultry carcasses from regions where END is

considered to exist. As stated in our proposal, the most likely outcome

of this rule is that U.S.-origin poultry carcasses and parts or

products of poultry carcasses would be shipped to Mexico for processing

and then returned to the United States.

In our proposal, we solicited comments on the potential effects of

the proposed action on small entities. In particular, we sought data

and other information to determine the number and kind of small

entities that may incur benefits or costs from the implementation of

the proposed rule. We received no comments providing specific data in

relation to the proposed rule's Initial Regulatory Flexibility

Analysis, but two of the commenters expressed concern that the proposal

could negatively affect U.S. poultry processing establishments that

could lose business to less costly Mexican processing operations.

Our Initial Regulatory Flexibility Analysis agreed that it is

possible that, under this rule, U.S. producers would ship poultry

carcasses or products to Mexico for processing to take advantage of

lower processing costs or to use Mexican processing plants as

supplements to the existing U.S. workforce and facilities. However, we

stated that we could not predict to what extent U.S. firms would elect

to send poultry to Mexico for processing, nor could we determine what

effect this rule would have on the volume of poultry processed in U.S.

processing facilities. The commenters did not provide any data.

Therefore, we are unable to determine the effect of this rule on small

or large poultry processors in the United States.

This rule may benefit U.S. truckers and haulers, wholesale traders,

and poultry producers and packers, who stand to benefit from increased

Mexican trade. However, as stated above, because we are unable to

predict the volume of processed poultry meat or other poultry products

that would be imported into the United States under this rule, we

cannot determine the effect of this rule on the U.S. entities listed

above, whether small or large.

Trade Relations

This rule removes some restrictions on the importation of poultry

carcasses and parts or products of poultry carcasses from regions where

END is considered to exist. Consequently, the rule could encourage a

positive trading environment between the United States and Mexico and

other regions where END is considered to exist by stimulating economic

activity and providing export opportunities to foreign poultry

processing industries.

Alternatives Considered

In developing this rule, we considered: (1) Making no changes to

the regulations governing the importation of poultry from regions where

END is considered to exist; (2) allowing the importation of poultry

carcasses and parts or products of poultry carcasses that originated in

a region free of END but that were processed in a region where END is

considered to exist under conditions different from those proposed; or

(3) allowing the importation of poultry carcasses and parts or products

of poultry carcasses that originated in a region free of END but that

were processed in a region where END is considered to exist under the

conditions in this document.

We rejected the first alternative because we believe this rule

provides a way to remove trade restrictions while maintaining adequate

safeguards against the introduction of END into the United States.

Under these circumstances,

[[Page 38550]]

making no changes to the regulations would be contrary to trade

agreements entered into by the United States.

We also rejected the second alternative because we believe that

conditions less stringent than those proposed would increase the risk

of the introduction of END into the United States to more than a

negligible level and that more stringent conditions would be

unnecessarily restrictive. We consider the conditions in this rule to

be both effective and necessary in keeping at a negligible level the

risk of imported poultry products introducing END into the United

States.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988,

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 1995 (44 U.S.C.

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

included in this rule have been approved by the Office of Management

and Budget (OMB) under OMB control number 0579-0141.

List of Subjects in 9 CFR Part 94

Animal diseases, Imports, Livestock, Meat and meat products, Milk,

Poultry and poultry products, Reporting and recordkeeping requirements.

Accordingly, we are amending 9 CFR part 94 as follows:

PART 94--RINDERPEST, FOOT-AND-MOUTH DISEASE, FOWL PEST (FOWL

PLAGUE), EXOTIC NEWCASTLE DISEASE, AFRICAN SWINE FEVER, HOG

CHOLERA, AND BOVINE SPONGIFORM ENCEPHALOPATHY: PROHIBITED AND

RESTRICTED IMPORTATIONS

1. The authority citation for part 94 continues to read as follows:

Authority: 7 U.S.C. 147a, 150ee, 161, 162, and 450; 19 U.S.C.

1306; 21 U.S.C. 111, 114a, 134a, 134b, 134c, 136, and 136a; 31

U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 2.22, 2.80, and

371.2(d).

Sec. 94.18 Amended]

2. In Sec. 94.18, footnotes 15 and 16 and their references are

redesignated as footnotes 17 and 18, respectively.

Sec. 94.17 [Amended]

3. In Sec. 94.17, footnote 2 is redesignated as footnote 16 and is

revised to read: ``See footnote 15 in Sec. 94.17(e) of this part.''

Secs. 94.6, 94.8, 94.9, 94.12, 94.16, and 94.17 [Amended]

4. In Secs. 94.6, 94.8, 94.9, 94.12, 94.16, and 94.17, footnotes 5

through 14 and their references are redesignated as footnotes 6 through

15, respectively.

5. In Sec. 94.12 the newly redesignated footnote 13 is revised to

read: ``See footnote 10 in Sec. 94.9 of this part.''

6. In Sec. 94.6, the section heading is revised, paragraph (c)(5)

is redesignated as paragraph (c)(6), and a new paragraph (c)(5) is

added to read as follows:

Sec. 94.6 Carcasses, parts or products of carcasses, and eggs (other

than hatching eggs) of poultry, game birds, or other birds;

importations from regions where exotic Newcastle disease (END) or S.

enteritidis is considered to exist.

* * * * *

(c) * * *

(5) Poultry carcasses or parts or products of poultry carcasses

that originated in a region considered to be free of END and are

processed (cut, packaged, and/or cooked) in a region where END is

considered to exist may be imported under the following conditions:

(i) Shipment to approved establishments. (A) The poultry carcasses

or parts or products of poultry carcasses must be shipped from the END-

free region where they originated in closed containers sealed with

serially numbered seals applied by an official of the national

government of that region. They must be accompanied by a certificate

that is signed by an official of that region's national government and

that specifies the products' region of origin, the processing

establishment to which the poultry carcasses or parts or products of

poultry carcasses are consigned, and the numbers of the seals applied

to the shipping containers.

(B) the poultry carcasses or parts or products of poultry carcasses

may be removed from containers at the processing establishment in the

region where END is considered to exist only after an official of that

region's national government has determined that the seals are intact

and free of any evidence of tampering. The official must attest to this

fact by signing the certificate accompanying the shipment.

(ii) Handling of poultry carcasses or parts or products of poultry

carcasses. Establishments \5\ in regions where END is considered to

exist that process poultry carcasses or parts or products of poultry

carcasses for export to the United States:

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\5\ As a condition of entry into the United States, poultry or

poultry products must also meet all of the requirements of the

Poultry Products Inspection Act (21 U.S.C. 451 et seq.) and

regulations thereunder (9 CFR part 381), including requirements that

the poultry or poultry products be prepared only in approved

establishments.

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(A) May not receive or handle any live poultry.

(B) Must keep any records required by this section on file at the

facility for a period of at least 2 years after export of processed

products to the United States, and must make those records available to

USDA inspectors during inspections.

(C) May process poultry carcasses or parts or products of poultry

carcasses that originate in both END-free regions and regions where END

is considered to exist, provided that:

(1) All areas, utensils, and equipment likely to contact the

poultry carcasses or parts or products of poultry carcasses to be

processed, including skimming, deboning, cutting, and packing areas,

are cleaned and disinfected between processing poultry from regions

where END is considered to exist and poultry carcasses or parts or

products of poultry carcasses from END-free regions.

(2) Poultry carcasses or parts or products of poultry carcasses

intended for export to the United States are not handled, cut, or

otherwise processed at the same time as any poultry not eligible for

export to the United States.

(3) Poultry carcasses or parts or products of poultry carcasses

intended for export to the United States are packed in clean new

packaging that is clearly distinguishable from that containing any

poultry not eligible for export to the United States.

(4) Poultry carcasses or parts or products of poultry carcasses are

stored in a manner that ensures that no cross-contamination occurs.

(iii) Cooperative service agreement. Operators of processing

establishments must enter into a cooperative service agreement with

APHIS to pay all expenses incurred by APHIS in inspecting the

establishment. APHIS anticipates that such inspections will occur once

a year. The cooperative service account must always contain a balance

that is at least equal to the cost of one inspection. APHIS will charge

the cooperative service account for travel, salary, and subsistence of

APHIS employees, as well as administrative overhead and other

incidental expenses (including excess baggage charges up to 150

pounds).

(iv) Shipment to the United States. Poultry carcasses and parts or

products

[[Page 38551]]

of poultry carcasses to be imported into the United States must be

shipped from the region where they were processed in closed containers

sealed with serially numbered seals applied by an official of the

national government of that region. The shipments must be accompanied

by a certificate signed by an official of the national government of

the region where the poultry was processed that lists the numbers of

the seals applied and states that all of the conditions of this section

have been met. A copy of this certificate must be kept on file at the

processing establishment for at least 2 years.

* * * * *

Done in Washington, DC, this 13th day of July, 1999.

Charles P. Schwalbe,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 99-18320 Filed 7-16-99; 8:45 am]

BILLING CODE 3410-34-M