Change in Disease Status of the Republic of South Africa Because of Foot-and-Mouth Disease and Rinderpest

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are declaring the Republic of South Africa, except the foot-and-mouth disease controlled area, which includes Kruger National Park, free of foot-and-mouth disease. We are also declaring all of the Republic of South Africa free of rinderpest. We are taking these actions because there have been no outbreaks of foot-and-mouth disease in the Republic of South Africa, except in the foot-and-mouth disease controlled area, since 1957, and there have been no outbreaks of rinderpest in the Republic of South Africa since 1903. These actions will relieve certain restrictions due to foot-and-mouth disease and rinderpest on the importation into the United States of certain live animals and animal products from all regions of the Republic of South Africa, except the foot-and-mouth disease controlled area. However, because we do not consider the Republic of South Africa to be free of hog cholera, African swine fever, and swine vesicular disease, the importation of live swine, and meat and other products from swine, into the United States from the Republic of South Africa will continue to be subject to certain restrictions.

EFFECTIVE DATE:

May 2, 2000.

FOR FURTHER INFORMATION CONTACT:

Dr. Glen I. Garris, Supervisory Staff Officer, Regionalization Evaluation Services Staff, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 39, Riverdale, MD 20737-1231; (301) 734-4356.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 9 CFR part 94 (referred to below as the regulations) prohibit or restrict the importation of specified animals and animal products into the United States to help prevent the introduction of various diseases, including foot-and-mouth disease (FMD) and rinderpest. FMD and rinderpest are highly contagious and destructive diseases of ruminants and swine.

Section 94.1(a) of the regulations provides that rinderpest or FMD exists in all regions of the world except those listed in § 94.1(a)(2) as free of both of those diseases and those listed in § 94.1(a)(3) as free of rinderpest. The regulations in § 94.1(b) prohibit, with certain exceptions, the importation into the United States of any ruminant or swine, or any fresh (chilled or frozen) meat of any ruminant or swine, that originates from a region where rinderpest or FMD exists, or that has entered a port in or otherwise transited a region where rinderpest or FMD exists. Also, the regulations in § 94.2 restrict the importation of fresh (chilled or frozen) products, other than meat, and milk and milk products of ruminants or swine that originate in or transit a region where rinderpest or FMD exists. Additionally, the importation of organs, glands, extracts, and secretions of ruminants or swine originating in a region where rinderpest or FMD exists is restricted under the regulations in § 94.3, and the importation of cured or cooked meat from a region where rinderpest or FMD exists is restricted under the regulations in § 94.4. Finally, the regulations in 9 CFR part 98 restrict the importation of ruminant and swine embryos and animal semen from a region where rinderpest or FMD exists.

The Government of the Republic of South Africa has requested that the U.S. Department of Agriculture (USDA) recognize the Republic of South Africa as free of rinderpest. It also has requested that USDA recognize the Republic of South Africa, except the FMD-controlled area, which includes Kruger National Park, as free of FMD.

On February 17, 1999, we published in the Federal Register (64 FR 7816-7822, Docket No. 98-029-1) a proposal to amend the regulations by declaring the Republic of South Africa, except the FMD-controlled area (which extends from the Republic of South Africa's border with Mozambique approximately 30 to 90 kilometers into the Republic of South Africa to include Kruger National Park and surveillance and control zones around the park, and elsewhere extends, from east to west, approximately 10 to 20 kilometers into the Republic of South Africa along its borders with Mozambique, Swaziland, Zimbabwe, Botswana, and the southeast part of the border with Namibia), free of FMD. We also proposed to declare all of the Republic of South Africa free of rinderpest. In addition, we proposed to add the proposed FMD-free area of the Republic of South Africa to the list of regions in § 94.11(a) that are declared free of rinderpest and FMD but are still subject to some restrictions on the importation of their meat and other animal products into the United States because they share land borders with or trade freely with regions that we do not recognize as being free of these diseases. We did not propose any changes to the restrictions we have on importations of swine and swine products from the Republic of South Africa because of hog cholera, African swine fever, and swine vesicular disease because we do not recognize the Republic of South Africa as being free of these diseases.

We solicited comments concerning our proposal for 60 days ending April 19, 1999. We received 17 comments by that date. They were from a State agricultural experiment station, a veterinary association, the Republic of South Africa, and private citizens. Three of the commenters supported the proposal as written. Twelve commenters supported the proposed rule, except with respect to the importation of animal semen and embryos from the Republic of South Africa. One commenter expressed concerns regarding various aspects of the docket, including how we proposed to regulate animal semen and embryos. One commenter expressed concerns about the effects that additional imports might have on the domestic Boer goat industry. All of the issues raised by the commenters are discussed below.

Importation of Semen and Embryos

In the proposal, we stated that the importation of ruminant and swine embryos and semen from the Republic of South Africa would be restricted as provided in subparts B and C of 9 CFR part 98 due to the presence of other ruminant and swine diseases (meaning diseases other than rinderpest and FMD). Thirteen commenters stated that the proposed restrictions on the importation of animal embryos and semen from the Republic of South Africa into the United States were unnecessarily stringent. We agree. Our citation to subpart B of 9 CFR part 98 was incorrect; we should have cited subpart A. Subpart B pertains to the importation of ruminant and swine embryos from regions where rinderpest or FMD exists. Under this final rule, ruminant and swine embryos from the Republic of South Africa, except the FMD-controlled area, may be imported in accordance with subpart A of 9 CFR part 98, which, among other things, sets forth the requirements for the importation of ruminant and swine embryos from regions free of rinderpest and FMD. The requirements in subpart A are less stringent than those in subpart B. In addition, the importation of ruminant and swine semen into the United States from the Republic of South Africa, except the FMD-controlled area, would be allowed as provided in subpart C of 9 CFR part 98 for animal semen from regions where rinderpest and FMD do not exist. Both subparts A and C include provisions for ensuring that other diseases that may be present in the Republic of South Africa are not introduced into the United States.

Swine Diseases

We stated in our proposed rule that the importation of swine and swine products from the Republic of South Africa would continue to be restricted because of hog cholera, swine vesicular disease (SVD), and African swine fever (ASF). One commenter objected. He stated that the Republic of South Africa has been free of hog cholera since 1918, and that SVD has never been diagnosed in the Republic of South Africa. In addition, the commenter stated that the Republic of South Africa has an ASF-controlled area and that the last outbreak of ASF in the free area, in February 1996, was due to an illegal movement of pigs from the ASF-controlled area. The commenter maintained that information regarding hog cholera and SVD in the Republic of South Africa is supplied by the Office International des Epizooties (OIE), which is the international standard-setting body for animal health. The commenter stated that the World Trade Organization Agreement on Sanitary and Phytosanitary Measures (WTO-SPS Agreement) requires us to provide a scientific basis for deviations from international standards.

The WTO-SPS Agreement requires that measures be scientifically sound, guided by international standards, adapted to regional conditions, transparent, risk-assessment based, taken in recognition that equal levels of risk mitigation may be achieved by applying differing sanitary measures, and be applied in a manner that is not arbitrarily or unjustifiably discriminating. Nations acting in accordance with the principles of the WTO-SPS Agreement may impose sanitary or phytosanitary requirements necessary to protect human, animal, or plant life or health.

The regulations in §§ 94.8, 94.9(a), and 94.12(a) describe regions in which ASF, hog cholera, and SVD, respectively, are considered to exist, including the Republic of South Africa. If the Republic of South Africa wishes to export live swine or meat and other products of swine to the United States under less restrictive conditions than currently apply and submits the request to us in accordance with 9 CFR part 92, we will evaluate the request in accordance with that part.

One commenter stated that ASF is a swine disease and that ruminant meat, embryos, and semen cannot be restricted based on the presence of ASF in certain areas of the Republic of South Africa.

We are not restricting the importation of ruminant meat, embryos, or semen because of the presence of ASF in the Republic of South Africa. Under this final rule, the importation of ruminant meat will continue to be restricted under § 94.11 because of the potential for it to be commingled with meat imported into the Republic of South Africa from regions where rinderpest or FMD exists. (See additional discussion below under “Trade Practices.”)

Ruminant embryos and semen may be imported in accordance with 9 CFR part 98, subparts A and C, respectively, and import conditions will not be affected by the presence or absence of ASF because that disease does not affect ruminants.

Trade Practices

We proposed to add the Republic of South Africa to the list of regions in § 94.11 that are free of rinderpest and FMD but are still subject to restrictions with respect to imports of meat and other animal products into the United States because of their trade practices with regions of higher risk for rinderpest and FMD.

One commenter objected to our listing the Republic of South Africa in § 94.11. The commenter stated that the Republic of South Africa was unaware of any international standard that allows a member country to restrict trade in products from free regions because of importation policies of those free regions. He stated that the Republic of South Africa's importation policies have been effective for over 40 years in preventing the introduction of FMD and rinderpest into the Republic of South Africa and that we should recognize those measures as equivalent in accordance with the WTO-SPS Agreement. The commenter further stated that the Republic of South Africa should be able to recognize other FMD- and rinderpest-free regions based on its own evaluation and should not have to discriminate against animals imported from regions recognized by the Republic of South Africa, but not by the United States, as free of FMD and rinderpest. The commenter also stated that, while the Republic of South Africa was willing to certify, as required by § 94.11, that slaughtered animals are from areas free of FMD and rinderpest, the Republic of South Africa objects to certifying that slaughtered animals were born and raised in the FMD-free area of the Republic of South Africa. The commenter specifically mentioned Namibia and Botswana as having FMD-free zones recognized by the OIE and said that the United States should recognize them as well. The commenter requested a copy of our risk assessment supporting our restrictions on ruminant and swine meat from the Republic of South Africa. The commenter also objected to the requirement in § 94.11 that certifications under that section must be made by a full-time salaried veterinary official of the national government.

The WTO-SPS Agreement obliges member countries to be transparent in developing SPS measures. The measures developed should be based on sound scientific principles, risk assessments, guided by relevant international standards, and applied without arbitrarily or unjustifiably discriminating. The principles of equivalence and adaptation to regional conditions should be encompassed within the measures. APHIS published its policy for applying these concepts to the importation of animals and animal products in the Federal Register on October 28, 1997 (see 62 FR 56027-56033, Docket No. 94-106-8.) As noted in that document, regions classified as “free” of a certain disease can present different levels of risk. Currently, § 94.11 of the regulations addresses this risk, with respect to rinderpest and FMD, by imposing restrictions on the importation of meat from regions that are “free” of these diseases, but that present a higher disease risk due to importation practices of these regions or their geographical proximity to regions with a higher disease risk. Paragraph (a) of § 94.11 lists regions that are declared free of rinderpest and FMD but are subject to restrictions on the importation of their meat and animal products into the United States because they: (1) Supplement their national meat supply by importing fresh (chilled or frozen) meat of ruminants or swine from regions that are designated in § 94.1(a) as regions where rinderpest or FMD exists; or (2) have a common land border with regions where rinderpest or FMD exists; or (3) import ruminants or swine from regions where rinderpest or FMD exists under conditions less restrictive than would be acceptable for importation into the United States. As a result of these practices, the meat or other products produced in the free region may be commingled with the fresh (chilled or frozen) meat of animals from a region where rinderpest or FMD exists, resulting in an undue risk of introducing rinderpest or FMD into the United States if the free region is allowed to export meat to the United States without restriction.

Section 94.11 requires, among other things, that the meat or other products imported into the United States from a region listed in § 94.11(a) be accompanied by a certificate that states, in part, that the meat or other animal product covered by the certificate was derived from animals born and raised in a region listed in § 94.2(a) of the regulations as free of rinderpest and FMD and has never been in any region in which rinderpest or FMD existed. We believe this certification is necessary to ensure that the meat imported into the United States from the free region is from an animal that is free of the disease and that the meat has not been commingled with meat from a region where rinderpest or FMD exists.

Section 94.11 requires this certification to be made by a full-time salaried veterinary official of the agency in the national government that is responsible for the health of the animals within that region. Because of the seriousness of the diseases § 94.11 addresses, we believe it is appropriate for a full-time salaried veterinary official to provide the required certification.

The Republic of South Africa recognizes FMD-free areas of Botswana and Namibia and imports ruminants and swine and ruminant and swine meat and other products from those regions under conditions that are less restrictive than would be acceptable for importation into the United States. The United States does not recognize Botswana or Namibia as being free of rinderpest or FMD, nor do we recognize FMD-free regions within either country. Further, neither country has requested that we evaluate its disease status with respect to rinderpest or FMD. As explained in our 1997 policy statement, we will continue to apply existing import requirements to countries listed in our regulations as free or not free of certain diseases until we amend our regulations based on a request to reevaluate a country's disease status or to regionalize a country for a certain disease. The request must come from the country wishing a change in status. The request must be made by a representative of the national government of that country who has the authority to request such a change, and the request must be accompanied by specific information about the region to be considered, in accordance with 9 CFR part 92. We will consider a region's listing by OIE in our assessment, but this will not be our sole criterion.

Our policy does not interfere with the Republic of South Africa's right to trade with any region or to independently assess the disease status of a particular region based on its own criteria or regulations, just as the United States does.

Regulatory Flexibility Analysis

One commenter stated that there is interest in the importation of cattle and small stock embryos from the Republic of South Africa into the United States. The commenter further stated that the volume of trade in embryos between the Republic of South Africa and the United States may increase based on our acceptance of the Republic of South Africa's disease status and certification procedure.

The commenter did not identify the animals that he considered small stock, but we assume that small stock includes goats and sheep. We anticipate that there will be some imports of small stock semen and embryos from the Republic of South Africa to improve the genetics of some herds in the United States; however, we expect the amount to be relatively low because the population of goats and sheep within the United States is relatively small.

Other

One commenter who breeds Boer goats requested the establishment of another port of entry, in Houston, TX, for importation. However, the commenter did not specify whether the port of entry should be for the importation of goats or goat embryos and semen. One commenter recommended requiring importers and owners of flocks that receive Boer goats and Boer goat germ plasm from the Republic of South Africa to meet certain requirements regarding domestic animal health, food safety, and livestock trade. This commenter also suggested restricting the rate of importation of Boer goats and Boer goat germ plasm from the Republic of South Africa into the United States to protect U.S. meat goat farmers and the U.S. Boer goat market.

These comments are outside the scope of this rulemaking.

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 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register. This rule removes certain restrictions on the importation into the United States of certain animals and animal products from the Republic of South Africa, except the FMD-controlled area. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be made effective 15 days after publication in the Federal Register.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. This 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 rule recognizes all of the Republic of South Africa as free of rinderpest and the Republic of South Africa, except the FMD-controlled area, as free of FMD. This action will relieve certain restrictions on the importation of animals and animal products into the United States from the Republic of South Africa. However, the importation of swine and pork and pork products will continue to be restricted because we do not consider the Republic of South Africa to be free of hog cholera, African swine fever, or swine vesicular disease.

The following analysis examines the economic effects of this rule on small entities as required by the Regulatory Flexibility Act.

The cattle industry in the Republic of South Africa is small relative to the cattle industry in the United States. In 1997, there were more than 101 million head of cattle in the United States, compared to more than 13 million in the Republic of South Africa. Of the 2 million head of cattle that were imported into the United States in 1996, more than 99 percent were from Canada and Mexico, and most of these were feeder and slaughter animals. Sheep and goat inventories in the United States are relatively small. In 1997, there were more than 7 million sheep and goats in the United States, compared to more than 35 million in the Republic of South Africa. Of the sheep that the United States imports, more than 99 percent are from Canada and Mexico (“World Trade Atlas,” June 1997). In 1995, the United States imported 460 goats and sheep from the Republic of South Africa; however, since 1995, the United States has not imported any live goats and sheep from the Republic of South Africa. We do not believe that adoption of this rule will lead to a significant number of live ruminants being imported into the United States from the Republic of South Africa because of the cost of transporting the animals.

We also do not believe that adoption of this rule will result in a significant amount of ruminant meat (beef, veal, mutton, and goat meat) and meat products imported into the United States from the Republic of South Africa. The Republic of South Africa's production of ruminant meat in 1997 was 1,542 million pounds, compared to 26,089 million pounds of ruminant meat produced in the United States. In 1997, the Republic of South Africa imported 196 million pounds of ruminant meat and exported 44 million pounds of ruminant meat. The Republic of South Africa trades primarily with the European Union, the Middle East, Japan, Korea, Australia, New Zealand, and neighboring African countries. The United States obtains more than 85 percent of its imports of ruminant meat and meat products from Australia, Canada, and New Zealand. We anticipate that this rule's effect on domestic supplies of ruminant meat and meat products will be negligible because we believe that the Republic of South Africa is unlikely to redirect a significant portion of its ruminant meat production for export exclusively to the United States, given that restrictions will remain in place for imports into the United States.

The importation of dairy products from the Republic of South Africa into the United States should also be minimally affected by this rule. In 1998, U.S. exports and imports of dairy products were valued at more than $914 million and $1,465 million, respectively. In 1998, the United States exported more than $3.6 million worth of dairy products to the Republic of South Africa and imported more than $3.4 million worth of dairy products from the Republic of South Africa. We believe that it is highly unlikely that the United States will import a significant amount of dairy products from the Republic of South Africa because the United States is a net exporter of those products to the Republic of South Africa. Therefore, the effect on domestic dairy producers should be minimal.

The importation of ruminant embryos and semen from the Republic of South Africa into the United States should also be minimally affected by this rule. The United States is a net exporter of both bovine semen and cattle embryos. In 1996, the value of U.S. bovine semen and cattle embryo imports was $7.7 million and $701,000, respectively, while the value of U.S. exports of bovine semen and cattle embryos was $63.1 million and $12.6 million, respectively (”World Trade Atlas,” June 1997). Due to the trade balance and the size differences between the cattle industries of the United States and the Republic of South Africa, the amount of bovine semen and cattle embryos imported will likely be minimal and have a minimal effect on small domestic cattle producers.

We believe that there will be a demand for the importation of Boer goat germ plasm from the Republic of South Africa to the United States. However, as previously stated, the goat industry within the United States is relatively small. As a result, we do not believe that the amount of germ plasm imported into the United States will be significant.

The entities most likely to be affected by this rule are those entities engaged in the production of live ruminants and ruminant meat and meat products. The Small Business Administration's (SBA's) definition of a small cattle farm is one whose total sales is less than $0.5 million annually. In 1997, 99.4 percent of cattle and calf farms in the United States would have been considered small entities.

The SBA's guidelines state that a small producer of products of swine or ruminants (part of Standard Industrial Classification (SIC) 2011 or 2013, meat packing plants) is one employing fewer than 500 workers. In 1997, 95 percent of the 1,393 meat packing establishments in SIC 2011 were considered small entities. These small establishments accounted for approximately 23.7 percent of the total value of shipments of the industry, or $54.5 billion. In 1997, 98.1 percent of the 1,297 establishments in SIC 2013 were considered small entities. These producers accounted for 78.3 percent of the total value of shipments of the industry, or $25 billion.

Although the majority of the domestic entities potentially affected by this rule are small, there should be only a minimal change in the level of imports that may compete with the production of these small entities, and thus there would be a minimal effect on any domestic producer of these products, whether small or large.

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 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 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.

National Environmental Policy Act

An environmental assessment and finding of no significant impact have been prepared for this rule. The assessment provides a basis for the conclusion that the importation of certain live animals and animal products from all regions of the Republic of South Africa, except the FMD-controlled area, will not present a significant risk of introducing or disseminating FMD or rinderpest disease agents into the United States and would not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

Copies of the environmental assessment and finding of no significant impact are available for public inspection 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 copies are requested to call ahead on (202)690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

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 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, 450; 19 U.S.C. 1306; 21 U.S.C. 111, 114a, 134a, 134b, 134c, 134f, 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).

2. Section 94.1 is amended as follows:

a. In paragraph (a)(2), by adding the words “Republic of South Africa except the foot-and-mouth disease controlled area (which extends from the Republic of South Africa's border with Mozambique approximately 30 to 90 kilometers into the Republic of South Africa to include Kruger National Park and surveillance and control zones around the park, and elsewhere extends, from east to west, approximately 10 to 20 kilometers into the Republic of South Africa along its borders with Mozambique, Swaziland, Zimbabwe, Botswana, and the southeast part of the border with Namibia),” immediately after “Republic of Korea,”.

b. In paragraph (a)(3), by adding the words “and the Republic of South Africa” immediately after “Greece”.

c. In paragraph (b)(1), by removing the reference to “part 92” and adding in its place a reference to “part 93”.

3. In § 94.11, paragraph (a) is amended by adding, in the first sentence, the words “Republic of South Africa except the foot-and-mouth disease controlled area (which extends from the Republic of South Africa's border with Mozambique approximately 30 to 90 kilometers into the Republic of South Africa to include Kruger National Park and surveillance and control zones around the park, and elsewhere extends, from east to west, approximately 10 to 20 kilometers into the Republic of South Africa along its borders with Mozambique, Swaziland, Zimbabwe, Botswana, and the southeast part of the border with Namibia),” immediately after “Republic of Korea,”.