Tuberculosis; Require Approved Herd Plans Prior to Payment of Indemnity
Federal Register: July 24, 2008 (Volume 73, Number 143)
Proposed Rules
Page 43171-43175
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr24jy08-18
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service 9 CFR Part 50
Docket No. APHIS-2006-0193
RIN 0579-AC65
Tuberculosis; Require Approved Herd Plans Prior to Payment of
Indemnity
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
SUMMARY: We are proposing to amend the regulations regarding the payment of indemnity for animals destroyed because of bovine tuberculosis to provide that an approved herd plan must be in place prior to the payment of indemnity, and to provide that 10 percent of the gross indemnity payment be withheld by the Animal and Plant Health
Inspection Service until the conditions of an approved herd plan have been implemented. We are also proposing to amend the regulations to deny payments of Federal indemnity for a herd whose owner has failed to follow the provisions of an approved herd plan, or has violated the conditions of an approved herd plan. We believe these proposed changes would further tuberculosis eradication efforts in the United States and protect livestock not affected with tuberculosis from the disease.
DATES: We will consider all comments that we receive on or before
September 22, 2008.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http:// www.regulations.gov/fdmspublic/component/ main?main=DocketDetail&d=APHIS-2006-0193 to submit or view comments and to view supporting and related materials available electronically.
Postal Mail/Commercial Delivery: Please send two copies of your comment to Docket No. APHIS-2006-0193, Regulatory Analysis and
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118,
Riverdale, MD 20737-1238. Please state that your comment refers to
Docket No. APHIS-2006-0193.
Reading Room: You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW.,
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m.,
Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
Other Information: Additional information about APHIS and its programs is available on the Internet at http://www.aphis.usda.gov.
FOR FURTHER INFORMATION CONTACT: Dr. C. William Hench, Senior Staff
Veterinarian, National Tuberculosis Eradication Program, VS, APHIS, 2150 Centre Avenue, Building B, MS 3E20, Ft. Collins, CO 80526; (970) 494-7378.
SUPPLEMENTARY INFORMATION:
Background
Federal regulations implementing the National Cooperative State/
Federal Bovine Tuberculosis Eradication Program for bovine tuberculosis in livestock are contained in 9 CFR part 77, ``Tuberculosis,'' and in the ``Uniform Methods and Rules--Bovine Tuberculosis Eradication''
(UMR), January 22, 1999, edition, which is incorporated by reference into the regulations in part 77. Additionally, the regulations in 9 CFR part 50 (referred to below as the regulations) provide for the payment of indemnity to owners of certain animals destroyed because of tuberculosis in order to encourage destruction of animals that are infected with, or at significant risk of being infected with, the disease.
Since 1998, a total of 78 livestock herds have become affected with tuberculosis in the United States, and at least 4 of these herds were on premises where herds previously had been affected with tuberculosis and had either been depopulated and the herd owners paid Federal and
State indemnity or undergone the approved quarantine, test, and removal program. Research has shown that there are ways to mitigate the spread of infection from wildlife to livestock, and herd plans have been developed for numerous herds specifying the mitigations that owners must implement to prevent reinfection.
In order to place more responsibility on owners to adhere to prescribed mitigation measures and protect their herds from reinfection, we are proposing to amend the regulations
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regarding the payment of indemnity for animals destroyed because of bovine tuberculosis to provide that an approved herd plan be in place prior to the payment of indemnity, and to provide that 10 percent of the gross indemnity payment will be withheld by the Animal and Plant
Health Inspection Service (APHIS) until the conditions of the herd plan have been implemented. We are also proposing to amend the regulations to deny payments of Federal indemnity for herds whose owners have failed to follow the provisions of an approved herd plan, or have violated the conditions of an approved herd plan. We believe that by linking implementation of an approved herd plan and compliance with it to eligibility for Federal indemnity, we would further tuberculosis eradication efforts in the United States and protect livestock not affected with tuberculosis from the disease.
Approved Herd Plans
An approved herd plan is a herd management and testing plan based on the disease history and movement patterns of an individual herd, designed by the herd owner and a State representative or APHIS representative to determine the disease status of livestock in the herd and to eradicate tuberculosis within the herd. The plan must be jointly approved by the State animal health official and the Veterinarian in
Charge. The herd plan must include appropriate herd test frequencies, tests to be employed, and any additional disease management or herd management practices deemed necessary to eradicate tuberculosis from the herd and prevent further spread of infection in an efficient and effective manner. Approved herd plans generally require a change in herd management, construction of barriers, pest control, and, in some cases, additional surveillance for tuberculosis on the owner's property. Thus, in most cases, compliance with an approved herd plan will be evident during a site visit and would not require the owner to provide any additional information or documentation.
Approved Herd Plans Linked to Indemnity
The existing regulations do not require herd owners who have tuberculosis-infected livestock to have an approved herd plan, nor do the regulations penalize owners whose subsequent failure to follow an approved herd plan results in reinfection of the herd or the infection of a replacement herd.
For owners that agree to follow an approved herd plan, the proposed rule would not change the amount of indemnity for which the herd owner is eligible; it would merely provide that only 90 percent of the gross indemnity payment be made after a herd plan has been approved and that 10 percent of the gross indemnity payment be withheld until the herd plan is effectively implemented. This change would provide owners with a strong incentive for participation because eligibility for Federal indemnity payments would be linked to participation in the program.
This change would also provide an incentive for States to enforce approved herd plans and take action if owners are not adhering to them.
The incentive to do so comes from the indirect effect of not having
Federal indemnity available. Under sec. 10407(d) of the Animal Health
Protection Act (AHPA) (7 U.S.C. 8306(d)), no payment of indemnity will be made for ``any animal, article, facility, or means of conveyance that becomes or has become affected with or exposed to any pest or disease of livestock because of a violation of an agreement for the control and eradication of diseases or pests [such as an approved herd plan] or a violation of this subtitle [i.e., the AHPA] by the owner.''
Accordingly, if a herd was to become reinfected as a result of a herd owner's failure to follow an approved herd plan and, pursuant to the
AHPA, the owner was denied Federal indemnity, the affected State would have to pay the costs of indemnity or the herd would remain in place under quarantine. If a sufficient number of affected herds were detected and not depopulated, it could ultimately result in a downgrade of the State's tuberculosis status.
Similar Disease Programs
While these proposed changes would be new to the tuberculosis eradication program, similar strategies have been used in other plant and animal disease programs. Two such programs include the cooperative infectious salmon anemia (ISA) control program administered by APHIS and the State of Maine, and the voluntary control programs for low pathogenicity H5 and H7 avian influenza in poultry (LPAI). These programs provide strong incentives for participation because eligibility for Federal indemnity payments is linked to participation in the programs.
Regulations in 9 CFR part 53 provide that, in order for producers in the State of Maine to receive indemnity for fish destroyed because of ISA, claimants must participate fully in the cooperative ISA control program described in Sec. 53.10(e). An economic analysis we prepared in connection with the rulemaking that established those regulations cited several benefits that flowed from those requirements, including reduced costs to the Maine salmon industry from animal mortality, costs from possible State regulatory actions, and trade restrictions on U.S. salmon product exports. In addition, an aggressive program early on, while the number of known affected pens was reasonably small, obviated the need for higher future Federal costs to contain a more widespread outbreak. As a result of the ISA program, one-half of Maine's salmon industry (along the West Coast of Cobscook Bay) avoided exposure to
ISA.
Similarly, the regulations for the control of H5/H7 LPAI and a new indemnity program (9 CFR parts 56, 146, and 147) as part of the
National Poultry Improvement Plan (NPIP) provide for the authority to pay indemnity of 100 percent of eligible costs associated with eradication of H5 and H7 LPAI for most participating producers and provide for the establishment of cooperative agreements with participating States through which States are eligible to receive 100 percent of the costs covered under the cooperative agreements. However, to qualify for 100 percent compensation, both the State and producers must participate in the LPAI control program; otherwise the compensation rate is only 25 percent. We believe that limiting indemnity payments to only 25 percent of associated costs serves as an incentive for participation in the voluntary control program for those few commercial poultry producers and States that do not participate in the NPIP and for those breeding poultry producers who participate in
NPIP but not in its LPAI programs. Thus, given the expected participation rates among commercial growers and States, nearly all producers and States will qualify for 100 percent indemnification in an
H5 or H7 outbreak.
Payment to Owners for Animals Destroyed
Section 50.3 of the regulations provides that we will pay indemnity to owners for cattle, bison, or captive cervids destroyed because of bovine tuberculosis, and sets a limit on the amount of joint State-
Federal indemnity payment the owner receives when the animals are slaughtered.
We propose to amend Sec. 50.3 by adding a new paragraph (c) that would provide for the payment of 90 percent
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of the gross indemnity amount for which the herd owner is eligible after a herd plan has been approved. APHIS would withhold the remaining 10 percent of the gross indemnity until the Veterinarian in Charge or official designated by him has conducted a site visit and has found that the herd owner has implemented the approved herd plan.
Claims for Indemnity
Section 50.12 includes provisions for making a claim for indemnity for cattle, bison, or captive cervids destroyed because of tuberculosis. Currently, the regulations provide that payment will be made only if the APHIS indemnity claim form has been approved by a proper State official and if payment of the claim has been recommended by the appropriate Veterinarian in Charge or an official designated by him. We would amend this section by adding the requirement that an approved herd plan be jointly completed by the herd owner and the State or Federal veterinarian as required under Sec. 50.3(c) before a claimant may receive indemnity.
Claims Not Allowed
Section 50.14 provides that claims for compensation for cattle, bison, or captive cervids destroyed because of tuberculosis will not be allowed under certain specified conditions. For instance, indemnity will not be allowed if all cattle, bison, or captive cervids in the claimant's herd have not been tested for tuberculosis, except under certain specified conditions. Nor will claims be paid if there is substantial evidence that the owner of the animals has attempted to obtain indemnity unlawfully or improperly.
We are proposing to amend the regulations in Sec. 50.14 to ensure that producers have in place, and comply with the requirements of, an approved herd plan in order to receive Federal indemnity payments for livestock destroyed because of tuberculosis. We would add a new paragraph (h) to provide that claims for compensation will not be allowed unless an approved herd plan is in place that has been jointly approved by the herd owner(s) and/or their representative(s) and a
State or Federal veterinarian as required under Sec. 50.3(c). We would also add a new paragraph (i) to provide that claims for indemnity for livestock that have become reinfected with or exposed to tuberculosis because the claimant has failed to follow the provisions of an approved herd plan or has otherwise violated the conditions of an approved herd plan will not be allowed.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
The 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.
We are proposing to amend the regulations regarding the payment of indemnity for animals destroyed because of bovine tuberculosis to provide that an approved herd plan must be in place prior to the payment of indemnity, and to provide that 10 percent of the gross indemnity amount be held by APHIS until the conditions of an approved herd plan have been implemented. We are also proposing to amend the regulations to deny payments of Federal indemnity for a herd whose owner has failed to follow an approved herd plan, or has violated the conditions of an approved herd plan. We believe these proposed changes would further tuberculosis eradication efforts in the United States and protect livestock not affected with tuberculosis from the disease.
For this rule, we have prepared an economic analysis. The analysis considers the potential economic effects of the proposed changes on small entities, as required by the Regulatory Flexibility Act, and provides a discussion of the potential costs and benefits, as required by Executive Order 12866.
The economic affects associated with the proposed changes are likely to be limited. There are about 1 million cattle herds in the
United States. Over the past 5 years, only about 1 out of every 100,000 cattle herds in the United States have been affected by bovine tuberculosis (table 1). Since 1998, there have been 78 tuberculosis- infected livestock herds in the United States. Of the 78 infected herds, 4 were on premises that had previously contained tuberculosis- infected herds. Had the provisions we are proposing in this document been in place, these four herds would have been denied Federal indemnity only if the herd owners had not followed specific requirements in the herd plan intended to prevent reinfection. Herd plans have been used for many years in the tuberculosis program.
Because herd plans are routinely used and because this proposed rule would not change the amount of the indemnity for which the herd owner is eligible, the costs associated with the proposed changes in terms of forgone indemnity payments are expected to be minimal.
Table 1.--Number of Bovine Tuberculosis (TB) Cases Not of Foreign Origin Per Year and Percentage of U.S. Herds
Affected, Fiscal Years 2003-2007
Number of
Percentage of positive TB
Total number
U.S. cattle
Fiscal year
cases not of of U.S. cattle herds affected foreign origin
herds
by TB \1\
2003..........................................................
11
1,013,570
