BEFORE THE DEPARTMENT OF LIVESTOCK
STATE OF MONTANA
In the matter of the amendment of ARM 32.3.220 and 32.3.401 pertaining to semen shipped into Montana and brucellosis definitions, and the adoption of new rules I through V pertaining to designated surveillance area and penalties
NOTICE OF AMENDMENT AND ADOPTION
TO: All Concerned Persons
1. On October 28, 2010, the Department of Livestock published MAR Notice No. 32-10-214 regarding the proposed amendment and adoption of the above-stated rules at page 2485 of the 2010 Montana Administrative Register, issue number 20. On December 9, 2010, the department published an amended notice and extension of comment period on the proposed amendment and adoption of the above-stated rules at page 2797, 2010 Montana Administrative Register, issue number 23.
2. The Department of Livestock has amended and adopted the following rules as proposed: 32.3.220, 32.3.401, New Rule I (32.3.433), and NEW RULE II (32.3.434) exactly as proposed.
3. The department has adopted the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
New Rule III (32.3.435) TESTING WITHIN THE DSA (1) The following official brucellosis test requirements apply to all test eligible animals that are or have been located within the DSA boundaries
at any time between January 15 and June 15 of any calendar year:
(a) an annual test;
(b) remains as proposed but is renumbered (a).
(2) A test completed July 16 or after is
accepted acceptable for movement out of the DSA or change of ownership through February 15 of the following year.
(3) remains as proposed.
AUTH: 81-2-102, 81-2-103, 81-2-104, MCA
IMP: 81-2-101, 81-2-102, 81-2-103, 81-2-104, 81-2-105, 81-2-110, 81-2-111, MCA
New Rule Iv (32.3.436) VACCINATION WITHIN THE COUNTIES IN WHICH THE DSA IS LOCATED (1)
Official Calfhood Vaccination (OCV) is required wWithin the entirety of counties in which the DSA is located, all sexually intact female cattle and domestic bison that are four months of age or older as of January 1 of any year must be Official Calfhood Vaccinates (OCV).
(a) Female cattle or domestic bison that are not OCV eligible may become Official Adult Vaccinates (AV)
following a negative brucellosis test.
(b) remains as proposed.
AUTH: 81-2-102, 81-2-103, 81-2-104, MCA
IMP: 81-2-101, 81-2-102, 81-2-103, 81-2-104, 81-2-105, 81-2-110, 81-2-111, MCA
NEW RULE V (32.3.437) PENALTIES (1) Persons found to be in violation of rules or laws relating to brucellosis
are subject to may be:
a $100 fee to the Department of Livestock, per animal, for failure to comply with ARM 32.3.438 (REF 81-2-102(c), MCA); guilty of a misdemeanor as described in 81-2-113, MCA; and
(b) subject to
any additional departmental expenses regarding the investigation if a violation of law has taken place, as defined in 81-2-109, MCA.
(2) Disputes will be heard by the Board of Livestock according to contested case rules of MAPA.
(3) In addition to the fees and expenses imposed in (1) any person, persons, firm, or corporation that fails to comply:
(a) may be guilty of a misdemeanor as described in 81-2-113, MCA; or
(b) may face civil liability as described in 81-2-114, MCA.
AUTH: 81-2-102, 81-2-103, 81-2-104, MCA
IMP: 81-2-101, 81-2-102, 81-2-103, 81-2-104, 81-2-105, 81-2-109, 81-2-110, 81-2-111, 81-2-113, 81-2-114, MCA
4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: It is unfair to require testing in the future if there is no funding to cover the cost.
RESPONSE #1: Funding the brucellosis surveillance program remains a priority for Montana Department of Livestock (MDOL). If funding is reduced, the MDOL may adjust mandatory testing requirements; however, the continued marketability of Montana's cattle depends on continued surveillance in areas of enhanced risk regardless of funding availability and funding source.
COMMENT #2: The money should be spent on vaccine development rather than imposing more rules and regulations.
RESPONSE #2: MDOL supports development of better vaccine for livestock and wildlife. Funding appropriated by the 2009 Legislature was specifically directed to fund the state's brucellosis program and to reimburse for brucellosis testing and adult vaccination.
COMMENT #3: There is no language in this rule to allow for testing out of these requirements or eliminating the Designated Surveillance Area (DSA).
RESPONSE #3: Risk mitigation and surveillance activities will be necessary as long as a risk from wildlife transmission exists.
COMMENT #4: Language stating that herd plans should be reviewed annually is too vague.
RESPONSE #4: MDOL is proposing to eliminate the annual herd test requirement in the final rule. Whole-herd testing will be conducted as part of a voluntary Certified Brucellosis-Free Herd program, as part of the epidemiological investigation, as requested by producers, and if MDOL assesses that there is an increased risk of brucellosis infection.
It should be noted that currently, there is no indemnity funding for positive animals. The lack of regular whole-herd testing is likely to result in a higher herd infection rate once a herd is found to be affected with brucellosis. Therefore detections may create a greater financial impact on a producer's operation than if the disease was found earlier.
The 2008 Montana herd had only one positive animal. The 2010 Montana herd had three positive animals out of 3200 tested (a prevalence of .09 percent at detection). It is highly likely that at the time of detection, the infection rate within these herds would have been higher if surveillance was limited to change of ownership and MCI testing.
COMMENT #5: The existing DSA rules and proposed changes may be inconvenient for those of us in the DSA, but they seem to be working and it's better than penalizing the whole state.
RESPONSE #5: The DSA regulations allow for standardized testing requirements for DSA cattle (3.6 percent of the geography of the state) while alleviating the unnecessary burden of testing for the remaining part of Montana.
COMMENT #6: The reimbursement to veterinarians for testing is too high. A sliding scale based on number of animals tested is more appropriate.
RESPONSE #6: Comments regarding veterinary reimbursement rates are outside the scope of the proposed administrative rule. However, MDOL agrees that a sliding scale is the most appropriate to ensure that veterinarians are willing and able to test small groups of animals and has been implemented January 1, 2011. This new rate is $12/head for up to 10 tests, $10/head for 11-50 tests, and $7.50/head for 51 head and over.
COMMENT #7: There were several comments regarding the availability of the Board of Livestock to attend the public meetings. Also, there was a request that a BOL member reside in the DSA.
RESPONSE #7: The location of residence of the BOL is outside the scope of the proposed administrative rule. The MDOL is directed by a seven-member board of livestock producers appointed by the Governor.
COMMENT #8: Turning the official order into a rule makes the DSA boundary more permanent and inflexible.
RESPONSE #8: The proposed administrative rule provides consistency while allowing for adjustment to the boundary through rulemaking. In case a change is needed quickly, an emergency rule can also be promulgated. For additional information, please see response #85.
COMMENT #9: What happens if brucellosis is found in wildlife outside of the current boundary?
RESPONSE #9: MDOL places a high priority on obtaining more complete and accurate information on the prevalence and distribution of infected elk in the state of Montana. This information is particularly important at the boundary of the area that infected elk are known to exist and directly affects the location of the DSA boundary. Findings of brucellosis in wildlife outside of the DSA boundaries will be reviewed with other information regarding likely location of those animals during the time of year when the disease is most likely to be transmitted.
COMMENT #10: The process for redrawing the boundary is unclear.
RESPONSE #10: Please see the response #9 above. The DSA boundary is determined by findings of brucellosis in wildlife, likely location of those animals during the transmission season, and geographical and political boundaries that allow enforcement.
COMMENT #11: The DSA boundary should not be based on elk surveillance during the hunting season when it's the abortive season that we're concerned with.
RESPONSE #11: Locations of infected elk during hunting season was only one factor among several used to determine the DSA boundary. For additional information, please refer to responses #9 and #10.
COMMENT #12: The DSA will only increase in size due to the increasing size of elk herds.
RESPONSE #12: The prevalence of brucellosis infection in Montana elk has increased significantly from the early 1990s. The geographical extent of infected elk has also likely increased, but data are not as definitive on this issue. These changes necessitate the MDOL to regularly review the boundaries of the DSA to ensure that Montana does not export diseased cattle. The DSA boundary will be adjusted based on the best available information.
COMMENT #13: How many positive elk found outside the current DSA boundary will it take to redraw the lines?
RESPONSE #13: It is impractical and unreasonable to establish an exact number, because the locations where animals are harvested, and the movements during the spring transmission time are not exact. For additional information please see responses #9 and #10.
COMMENT #14: It doesn't make sense to collar and release elk that have tested positive for brucellosis.
RESPONSE #14: This comment is not within the scope of the proposed administrative rule. However the proposed elk study project by Montana Department of Fish, Wildlife and Parks (FWP) will provide critical information regarding brucellosis prevalence, elk movement, reproductive success or failure, and persistence of the disease in elk in areas of Montana where little information is currently available. Further, the study area will focus on the boundary where brucellosis-positive elk are thought to exist, and therefore, the number of elk testing positive that are collared and released should be few (one to five of the 100 captured in a year). The increased understanding of brucellosis in wildlife will outweigh the risk of leaving these few animals in the elk population until the end of the study at which time they will be removed.
COMMENT #15: Elk testing is a waste of money because the DSA boundaries are already drawn and cattle testing rules are already in place.
RESPONSE #15: This comment is not within the scope of the proposed administrative rule; however, testing requirements and DSA boundaries can be adjusted based on new information. For additional information, please see response #14.
COMMENT #16: We need to focus more on cleaning up brucellosis in the wildlife rather than imposing more requirements on producers.
RESPONSE #16: This comment is outside the scope of the proposed rule; however, MDOL is having continual dialogue with the Montana Department of Fish, Wildlife and Parks (FWP) on elk brucellosis issues including a joint session of the Board of Livestock (BOL) and the FWP Commission on November 17, 2010. Reversing the trend of increasing brucellosis prevalence in Montana wildlife remains a priority. Brucellosis prevention and testing on DSA livestock needs to be conducted in conjunction with efforts to decrease the prevalence of brucellosis in wildlife.
COMMENT #17: The increase in wolf numbers has caused changes in elk behavior, creating a higher likelihood that elk and cattle will interact.
RESPONSE #17: This comment is outside the scope of the proposed administrative rule; however, MDOL is engaging with producers and with FWP on how to mitigate new and possibly increasing risks.
COMMENT #18: Producers are doing their part in brucellosis surveillance, but what is FWP doing?
RESPONSE #18: This comment is outside the scope of the proposed rule; however, please see response #16.
COMMENT #19: The rule still does not address the disease or the transmission of the disease between wildlife and livestock, it only extends the surveillance and testing burden to livestock producers in the DSA.
RESPONSE #19: FWP is legislatively tasked with managing most wildlife in the state of Montana. The MDOL is tasked with disease control in livestock. For additional information please refer to response #43.
COMMENT #20: The proposed rule treats the area producers as the problem and ignores the source, punishing the very people who have to work with the resulting problems.
RESPONSE #20: Please see responses #16 and #19.
COMMENT #21: Producers don't want to have to vaccinate heifer calves if they are not being kept as replacements.
RESPONSE #21: The proposed rule requires vaccination of all female calves (replacement and feeders) because MDOL desires to prevent brucellosis infection of cattle regardless of future use. For additional information, please see responses #25 and #26.
COMMENT #22: It is unclear when you will be in violation of the official calfhood vaccination (OCV) requirement if it must be done between 4 and 12 months of age.
RESPONSE #22: The rule requiring official calfhood vaccination will most frequently be enforced prior to sale of animals. Enforcement of the vaccination requirement for animals not changing ownership or remaining within the DSA will be made as the MDOL becomes aware of violations. For more information please see responses #25, #26, and #64.
COMMENT #23: Don't want to vaccinate heifers prior to 12 months of age if they are eventually going to be spayed.
RESPONSE #23: MDOL supports spaying heifers not intended for breeding. For nonvaccinated heifers that will be spayed following a change of ownership, a quarantine may be issued until the procedure is performed.
COMMENT #24: Having a mandatory statewide OCV requirement would be beneficial.
RESPONSE #24: The MDOL conducted seven public meetings in 2010 to solicit producer feedback on a proposed mandatory, statewide, calfhood vaccination requirement. While some producers favored such a requirement, the majority of feedback that MDOL received did not support it. The Montana Board of Livestock considers, but did not make a determination on the proposed statewide vaccination requirement during the January meeting (Jan 18-19, 2011).
COMMENT #25: Countywide OCV requirement in the four counties doesn't seem fair.
RESPONSE #25: Vaccination of calves against brucellosis is a best management practice. Further, the majority of Montana cattle producers already vaccinate their female calves; therefore, the proposed rule is not expected to pose an unreasonable burden on Montana producers. The proposed rule requires countywide calfhood vaccination: 1) to ease movement of female calves across the boundary of the DSA within a county, and 2) because the risk of transmission or the extent of elk movements during the risk period in some parts of MT is not fully understood.
However, MDOL understands that brucellosis vaccinating "fall" calves as they are leaving the DSA has a minimal impact on reducing risk of infection. MDOL has amended the draft rule from all females to "all females four months of age and older by Jan 1 of any year". This would minimize the number of susceptible (nonvaccinated) females in the DSA during the elk abortion and calving season.
COMMENT #26: Some management practices don't allow for much handling prior to taking animals to market; getting them vaccinated is not necessarily feasible.
RESPONSE #26: With the proposed changes to the OCV requirement as described in response #25, only OCV eligible females in the DSA on January 1 need to be vaccinates. Therefore, the number of animals needing handling is significantly reduced, with proportionate reduction in cost, and facilities needed. Exceptions can be made with prior approval of the state veterinarian.
COMMENT #27: The Board of Livestock is responsible for appeals to the penalty fines, but they are not an unbiased judge. There should be a disinterested third party responsible for any appeals.
RESPONSE #27: Please see response #64.
COMMENT #28: Penalty is too strict for producers who aren't in the DSA. The fine is overly aggressive and could be better handled in another manner.
RESPONSE #28: The proposed penalty assessed needs to be equivalent or greater than the violator's economic benefit derived from the violation. However, MDOL is proposing to change the final rule language to reflect authority provided in 81-2-113, MCA. For additional information, please refer to response #64.
COMMENT #29: How to determine whether an animal is an official calfhood vaccinate is unclear and using the fine to penalize producers who have animals with lost tags or illegible tattoos is unfair.
RESPONSE #29: The MDOL does not intend to levy fines in cases of individual animals where vaccination tattoos are illegible or tags have been lost. Violations will be considered on a case-by-case basis.
COMMENT #30: There have been only six cases of brucellosis in the last 25 years. MCI trace back has identified all but one of the six infections.
RESPONSE #30: Since the year 2000, Wyoming found seven affected herds, Montana found three affected herds, and Idaho found four affected herds for a total of 14 herds. Seven of these detections took place in the last three years, and only one of these (Idaho) was found by MCI.
COMMENT #31: Establish DSA based on wildlife infection surveillance that is statistically significant.
RESPONSE #31: Obtaining adequate sample numbers from elk has been a challenge. MDOL has been working closely with FWP to enhance sample collection in the most critical areas. This is the focus of the recently announced elk study project funded by USDA-APHIS and executed by FWP.
COMMENT #32: Testing requirements are more aggressive than necessary and are not financially sustainable.
RESPONSE #32: MDOL has proposed to remove the requirement for annual whole-herd testing. For additional information, please see response #4.
COMMENT# 33: Testing eligibility age should be raised to 18 months because animals don't abort or calve until 20 months of age or older. Please cite a reference.
RESPONSE #33: While cattle may not abort until they reach reproductive age, the animals are susceptible to infection at an earlier age. It is highly desirable to detect positive animals prior to abortion and calving when the disease is readily spread. USDA-APHIS interim rule on brucellosis published on December 27, 2010 requires that cattle six months of age and older be included in herd testing. The rule can be found here: http://www.regulations.gov/#!documentDetail;D=APHIS-2009-0083-0001
COMMENT #34: Testing requirements should be limited to MCI (at slaughter), and testing at change of ownership.
RESPONSE #34: The MCI testing program has historically been, and will remain important in detecting brucellosis in adult animals. Likewise, the change of ownership test has been useful in detecting cases of brucellosis in Wyoming in 2009 and 2010.
Please see responses #4 and #30 for additional information.
COMMENT #35: Based on the forthcoming revision of federal brucellosis rules, it should be permitted to adult vaccinate animals without a brucellosis test.
RESPONSE #35: Adult vaccination was not addressed in the USDA-APHIS interim rule on brucellosis published on December 27, 2010. This issue is likely to be discussed and addressed by the Tuberculosis-Brucellosis Working Group that has been charged with the more comprehensive revision of federal rules.
COMMENT #36: A commenter disagreed with the economic impact of Rule I.
RESPONSE #36: MDOL maintains that the boundary in itself does not create an economic impact. The financial impact of testing requirements within an established surveillance area, are addressed in a latter section.
COMMENT #37: The two dollar reimbursement rate to producers "does not justify random testing."
RESPONSE #37: MDOL recognizes that surveillance for brucellosis has a financial impact on producers. Two dollars per animal helps reduce, but not eliminate this impact. The state of Wyoming and Idaho do not provide producer reimbursement.
COMMENT #38: Even if the operation is within the DSA, testing should not be required if there is no risk of comingling with elk.
RESPONSE #38: Herd plans help describe and quantify risk. However, because of the inherent difficulties in quantifying risk of exposure to brucellosis, some level of brucellosis surveillance of livestock within the surveillance area is necessary.
COMMENT #39: Brucellosis needs to be cleaned up from Yellowstone National Park and Montana elk.
RESPONSE #39: This comment is outside the scope of the draft rule; however, MDOL supports all efforts to reduce prevalence of brucellosis within the Greater Yellowstone Area.
COMMENT #40: There are no livestock producers on the Board of Livestock.
RESPONSE #40: This comment is outside the scope of the draft rule. However, the seven-member Board of Livestock is exclusively composed of livestock producers including four representing the beef cattle industry, one dairy, one pork, and one representing the sheep industry.
COMMENT #41: Carbon County should be included in the DSA because of the 2007 affected herd.
RESPONSE #41: The epidemiologic investigation of the 2007 brucellosis-affected herd concluded that the most likely source of exposure for the index animal was in Park County, Montana where the animal was raised after weaning and bred before returning to Carbon County.
Additionally, consultations with FWP suggest that there is little likelihood of brucellosis-positive elk from Wyoming moving north in that section of the state.
Further, MDOL analyzed over 14,000 samples from Carbon County since 2007 with no additional positive samples aside from those related to the affected herd.
COMMENT #42: Official order currently in place is appropriate, but to replace it with administrative rule is not.
RESPONSE #42: Prior to publication of the draft administrative rule, MDOL received numerous comments stating that an administrative rule is more appropriate than an official order. Because brucellosis surveillance is likely to continue for the foreseeable future, and is now required by federal rule (see response #33), MDOL feels that an administrative rule is a more appropriate regulatory mechanism. This position has been supported by findings of the Economic Affairs Interim Committee (EAIC), a joint bipartisan committee of the Montana Legislature that reviewed DSA regulations.
COMMENT #43: The MDOL DSA official order does not address the transmission of the disease between wildlife and cattle.
RESPONSE #43: The draft administrative rule addresses the risk of transmission of disease by encouraging producers to participate in a risk mitigating herd plan and requiring vaccination and testing.
COMMENT #44: The economic impact to livestock producers including "equipment costs, labor costs, lost profits, and vaccination costs" is not recognized.
RESPONSE #44: Please see response #37.
COMMENT #45: The DSA was designated by FWP, not by science and testing.
RESPONSE #45: Please see responses #9, #10, and #11.
COMMENT #46: The limited number of affected herds in Montana does not justify the surveillance.
RESPONSE #46: Please see response #34.
COMMENT #47: The surveillance program should be less "costly" and "burdensome" to the producer.
RESPONSE #47: Please see responses #4, #32, and #37.
COMMENT #48: DSA boundaries were established in an arbitrary fashion. For example, Hunting District (HD) 317 had no infected elk using the Western Blot test (WB).
RESPONSE #48: Surveillance results combined with other information such as elk migratory movement is important information used to establish the DSA. Specifically regarding HD 317, of three samples collected, all were WB negative, but one of these tested as suspect based on a validated (captive) cervid testing protocol for a 33 percent prevalence.
While the WB may be helpful in some situations, it is not a valid test, and has shown some significant error in this use. Page 16 of the 2009-10 Elk Surveillance Report published by FWP, Neil Anderson, et al., describes the WB being wrong 66 percent of the time on six samples that were confirmed positive by culture.
Lastly, Brucella abortus culture was isolated from a cow elk in HD 317 confirming that positive elk reside in this hunting district.
COMMENT #49: MDOL is encouraging migration of infected bison into Montana by being a signatory to the Interagency Bison Management Plan (IBMP). Asking producers to mitigate risk of elk is unreasonable based on the risk from Yellowstone bison which are 30-40 percent positive for brucellosis.
RESPONSE #49: The IBMP is the result of a Record of Decision issued by a federal court which requires two state and three federal agencies to cooperate to manage Yellowstone National Park (YNP) bison. Testing is required for cattle at risk of brucellosis transmission from bison and elk just as it is required for producers facing a risk exclusively from infected elk.
COMMENT #50: MDOL shouldn't change the state brucellosis rules ahead of publication of rules proposed by USDA-APHIS.
RESPONSE #50: The federal interim rule was published December 27, 2010. Please see response #33.
COMMENT #51: Annual whole-herd testing is burdensome and time consuming.
RESPONSE #51: Please see responses #4, #32, and #37.
COMMENT #52: Beef producers should not be penalized for raising cattle in a county surrounding YNP until Montana addresses the issue in wildlife.
RESPONSE #52: This comment is beyond the scope of the draft rule; however, MDOL supports efforts to eliminate brucellosis from wildlife. The recently published federal interim rule on brucellosis requires a state with a wildlife brucellosis reservoir to establish a disease management plan to maintain Class Free Status.
COMMENT #53: Support statewide OCV because elk are spreading to new areas because of wolves.
RESPONSE #53: Please see response #24.
COMMENT #54: Need to adjust the area of the DSA based on new information to encompass all at risk areas.
RESPONSE #54: MDOL is continually evaluating new information to determine the most appropriate DSA boundary. Two areas of particular interest include:
a. North outside of the DSA, lands north of the Highway 84 (Norris Rd.) east of Four Corners
b. Southwest outside of the DSA, lands west of Price Lane between Southside Centennial Road on the north and the Idaho border to the south. Additional information on this area is forthcoming from an elk study conducted by Idaho Fish and Game as well as a FWP-led elk capture study directly to the north.
COMMENT #55: The DSA boundary in the Centennial Valley should be moved east to exclude the valley floor. Elk do not calve on the valley floor.
RESPONSE #55: The presence of brucellosis-positive elk has been well documented in this area. While the nature of this presence is often transient, the boundaries of the DSA need to circumscribe the range of brucellosis-positive elk during the high-risk time. The extent of interaction of these elk with livestock will be evaluated through the herd plan process. For additional information, please see response #54 (b).
COMMENT #56: DSA producers are being punished with strict testing and vaccinating regulations so that the rest of the state doesn't have to do anything.
RESPONSE #56: Regardless of requirements in other parts of the state, cattle originating from the DSA will require testing through a state program, import restrictions by other states, or federal brucellosis rules. However, it is noted that a strong state program focused on an area of increased risk allows non-DSA cattle that have little risk of brucellosis to move more freely in commerce.
COMMENT #57: If a herd has already been tested and there is never any elk contact, continued testing should not be required.
RESPONSE #57: It is difficult to establish zero risk of brucellosis transmission from elk due to shifting and sometimes uncertain information on elk movement and disease prevalence. For "low-risk" DSA herds, it is desirable to maintain a commensurate low level of surveillance such as change of ownership, movement, and MCI testing. For additional information, please see response #4.
COMMENT #58: Testing should be required only if a major interaction between elk and cattle occurs.
RESPONSE #58: Not all elk-cattle interactions are witnessed or reported. For further information please see response #57.
COMMENT #59: If the DSA boundaries expand, MDOL needs to be ready to handle the resulting increase in funding that will be necessary.
RESPONSE #59: Please see response #1.
COMMENT #60: Requiring OCV in the entirety of the four counties is outside the boundaries of the DSA and therefore is an expansion of the DSA.
RESPONSE #60: Only the parts of the four counties of Beaverhead, Madison, Park, and Gallatin that are in the DSA have testing requirements on cattle. The remaining parts of the counties only have a calfhood vaccination requirement and do not have DSA associated testing requirements. OCV is a best management practice and should be implemented in the Greater Yellowstone Area regardless of state regulations.
COMMENT #61: OCV should be required for all producers in the DSA and adult vaccination of any animals that are not OCV.
RESPONSE #61: MDOL strongly supports calfhood vaccination, and adult vaccination for non-OCV adults. The proposed rule is consistent with this position.
COMMENT #62: The rule needs to state that OCV in the four counties is mandatory, not "should be done" because that creates confusion.
RESPONSE #62: MDOL has changed the draft rule to state "Within the entirety of counties in which the DSA is located, all sexually intact females cattle and domestic bison four months of age or older as of January 1 of any year must be Official Calfhood Vaccinates (OCV)".
COMMENT #63: It needs to be stated in a straight forward manner whether bull calves need to be vaccinated or not.
RESPONSE #63: While only intact female calves between 4-12 months of age are defined as eligible for calfhood vaccination by federal regulations, male cattle are also susceptible to infection. Because a herd with male cattle testing positive for brucellosis would be considered a "brucellosis-affected herd", MDOL has been encouraging producers to also include these animals in brucellosis vaccination programs.
COMMENT #64: MCA 81-2-102 (c), does not give MDOL the authority to assess penalties for noncompliance. Therefore, this portion of the rule should be dropped.
RESPONSE #64: MDOL has revised the draft rule to state:
(1) Persons found to be in violation of rules or laws relating to brucellosis may be:
(a) guilty of a misdemeanor as described in 81-2-113, MCA; and
(b) subject to any additional departmental expenses regarding the investigation if a violation of law has taken place, as defined in 81-2-109, MCA.
MDOL believes 81-2-102(d), MCA provides legal authority to promulgate New Rule V.
COMMENT #65: Do lost tags/inability to get a tag into a particular animal because of risk of injury constitute noncompliance.
RESPONSE #65: Please see response #29.
COMMENT #66: The MDOL has violated our constitutional rights to a clean and healthful environment by allowing this disease to reach our ranches and therefore has not legally fulfilled its responsibility to the livestock industry.
RESPONSE #66: The MDOL has not violated the right to a clean and healthful environment in any way. It is unclear if a naturally occurring disease could ever trigger a violation of the constitutional right in question. The department has taken many actions including the one contemplated by this rule to stop the spread. Nothing in this rule affects this comment.
COMMENT #67: The concept of the DSA is understandable, but requirements on DSA producers are more stringent than needed.
RESPONSE #67: MDOL strives to promulgate regulations that will be successful in finding disease and continue the desirability of Montana's cattle while creating the least burden possible. Please see responses #4, 25, and #32.
COMMENT #68: Mandatory ID on test-eligible animals should only be implemented if and when they are actually tested.
RESPONSE #68: MDOL understands that animals will be identified most frequently at the time they are tested or processed for other reasons. Traceability of animals leaving the DSA is a critical priority. Animals meeting identification requirements based on DSA requirements need to be identified prior to or at the time they leave the DSA.
COMMENT #69: The reference to elk hunting seasons and the determination of the DSA boundaries from FWP data gathered during hunting seasons is arbitrary and should be removed from the ARM.
RESPONSE #69: While imperfect, hunter-harvested surveillance samples currently are, and will likely remain a critical source of information on prevalence of brucellosis in elk, and the distribution of these animals. The reference to hunting seasons is in the background information of New Rule I and is not part of the text of the administrative rule.
COMMENT #70: Considering budgets and manpower needed for enforcement, a DSA that can be implemented and removed as needed makes more sense (i.e. if the DSA is disease free – no seropositive cattle – for a period of three years, then the DSA and its activities are suspended).
RESPONSE #70: Federal rules (as explained in response #33) require a state with a wildlife reservoir of brucellosis to establish a disease management area. As a matter of record, the state of Montana has found three herds affected with brucellosis in four years. For further information, please see responses #1, #30, #42, and #57.
COMMENT #71: Statutorily, the state vet is tasked with protecting all livestock within the state of Montana, but there is no protection for the livestock within the DSA – only regulations.
RESPONSE #71: One of the primary responsibilities of the state veterinarian as directed in 81-2-102(d), MCA is to prevent the introduction and spread of communicable disease. In an area of increased risk of brucellosis transmission, this responsibility is met through risk mitigating herd plans, vaccination requirements, and testing of the cattle population.
COMMENT #72: Significant changes to the DSA should be delayed until the comment period closes on the interim federal rule and USDA APHIS publishes final rule.
RESPONSE #72: There are a number of changes necessary to the official order regardless of the federal rule that include removal of the annual herd testing requirement (response #4), vaccination requirement changes (response #25), and to remove references to counties only included in the Brucellosis Action Plan (Stillwater, Sweet Grass, and Carbon).
COMMENT #73: Madison County should not be included in the DSA because there have been no herds with brucellosis diagnosed in the county.
RESPONSE #73: The 2010 affected herd spans a boundary between Gallatin and Madison County. Further information on the geographical range of brucellosis-positive elk documents presence in Madison County.
COMMENT #74: The risk period established by MDOL of January 15 through June 15 is longer than the abortion season when there is greatest risk of transmission. Public land grazing allotments are being limited for ranching based on this date designation.
RESPONSE #74: While MDOL recognizes that the abortion period taking place in January and February is often of greatest risk, potential interactions between elk and livestock do occur through the elk calving season which continues through the month of June. It is not desirable to limit grazing opportunities based on this information, but likewise it is unreasonable to suggest that no risk exists. MDOL has removed reference to June 15 in the final MDOL rule.
COMMENT #75: The three state governors (MT, WY, ID) need to pressure the Federal Fish and Wildlife Service, the U.S. Park Service, and the three state wildlife agencies to take an active role in controlling brucellosis in bison and elk.
RESPONSE #75: This comment is outside of the scope of the proposed rule. However, Montana's governor strongly supports elimination of the disease from the Greater Yellowstone Area when tools to accomplish this are available.
COMMENT #76: The June 15 date to enter the DSA causes undue hardship on producers and takes away their grazing rights and property rights and creates the impression that groups are trying to push livestock off public lands.
RESPONSE #76: Producers are able to graze their cattle in the DSA any time of the year. Utilizing the area during a period when the risk transmission of brucellosis from wildlife increased requires some additional surveillance. Please see response #4 and #74.
COMMENT #77: MDOL should allow variances to June 15 date through herd plans.
RESPONSE #77: Please see responses #4, #74, and #76.
COMMENT #78: Having a DSA decreases property values for producers in the area.
RESPONSE #78: This comment is outside of the scope of the proposed rule. However, MDOL is cognizant of the additional burden of brucellosis testing and strives to create regulations that are least obstructive to commerce, while ensuring that brucellosis-positive livestock could not leave the area.
COMMENT #79: Producers should not be required to revaccinate adult cattle unless there have been seropositive cattle found in their herd.
RESPONSE #79: Adult vaccination remains a voluntary, best management practice. Adult vaccination has been shown to dramatically improve the immunity to brucellosis infection, and MDOL encourages producers that do have risk commingling with brucellosis-positive elk to consider adult vaccination.
COMMENT #80: Redirected funds from costly bison hazing and slaughter operations could be used to support producers in implementing the commendable OCV requirements in the DSA.
RESPONSE #80: This comment is outside of the scope of the proposed rule. However, MDOL does have limited discretion to apply bison management funds to DSA efforts.
COMMENT #81: Specific strategies MDOL could immediately support in the DSA include increasing strategic fencing, continuing frequent cattle testing, allowing only steers and spayed heifers in critical areas, and requiring calfhood and adult vaccination of all cattle in the GYA.
RESPONSE #81: Many of these practices are occurring already. MDOL does not support limiting grazing opportunities to some classes of animals based on brucellosis risk. Risk mitigation strategies and adequate surveillance should minimize the likelihood of transmission of the disease to cattle and exporting brucellosis-positive livestock.
COMMENT #82: MDOL should work with U.S. Fish & Wildlife Service and the State of Wyoming to begin phasing out all elk feedgrounds in WY.
RESPONSE #82: This comment is outside of the scope of the proposed rule. However, MDOL has participated in efforts to focus on the issue of winter feeding of elk, and discourage the practice. Please see the 2010 USAHA resolution from the brucellosis committee: http://www.usaha.org/committees/resolutions/2010/resolution24-2010.pdf.
COMMENT #83: MDOL can improve its program by allowing bison to roam more freely in low-risk areas outside Yellowstone National Park.
RESPONSE #83: This comment is outside of the scope of the proposed rule. However, the MDOL supports reducing the number of brucellosis-positive wildlife in the Greater Yellowstone Area, rather than increasing it.
COMMENT #84: Native wildlife need to be treated as wildlife, particularly in light of the fact that brucellosis originally came to the GYA from introduced cattle. MDOL and the industry should not ignore the broader public interest with respect to wildlife.
RESPONSE #84: This comment is outside of the scope of the proposed rule. MDOL regulations focus on risk mitigating activities and enhance surveillance in livestock.
COMMENT #85: Why couldn't we revisit every two years to see if the DSA and testing could be eliminated or reduced?
RESPONSE #85: The proposed rule is subject to Montana Administrative Procedures Act, http://data.opi.mt.gov/bills/mca_toc/2_4.htm, and will be subject to revision based on new information, changing needs of the industry, federal rule-making and other factors.
DEPARTMENT OF LIVESTOCK
/s/ Christian Mackay /s/ George H. Harris
Christian Mackay George H. Harris
Executive Officer Rule Reviewer
Department of Livestock
Certified to the Secretary of State January 31, 2011.