[Federal Register Volume 73, Number 102 (Tuesday, May 27, 2008)]
[Rules and Regulations]
[Pages 30291-30299]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11741]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 82

[Docket No. APHIS-2006-0036]
RIN 0579-AC42


Exotic Newcastle Disease; Quarantine Restrictions

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are making several changes to the exotic Newcastle disease 
domestic quarantine regulations, including adding an option for the 
movement of pet birds; adding restrictions on the interstate movement 
of live ratites out of quarantined areas; harmonizing our domestic and 
import regulations regarding the movement of dressed carcasses of dead 
birds and dead poultry; providing for the use of alternative procedures 
for treating manure and litter and for composting; and adding an 
additional surveillance period after the conditions for removing 
quarantine are met before quarantine is removed. We concluded that 
these changes are necessary based on our experiences during the 
eradication programs for the 2002-2003 outbreaks of exotic Newcastle 
disease in California, Arizona, Nevada, and Texas. In the event of an 
exotic Newcastle disease outbreak, these changes will help to ensure 
that exotic Newcastle disease does not spread from quarantined areas 
and that exotic Newcastle disease is eradicated within quarantined 
areas.

DATES: Effective Date: June 26, 2008.

FOR FURTHER INFORMATION CONTACT: Dr. Glen Garris, Director, National 
Veterinary Stockpile, National Center for Animal Health Emergency 
Management, VS, APHIS, 4700 River Road Unit 41, Riverdale, MD 20737-
1231; (301) 734-8073.

SUPPLEMENTARY INFORMATION:

Background

    Exotic Newcastle disease (END) is a contagious and fatal viral 
disease affecting the respiratory, nervous, and

[[Page 30292]]

digestive systems of birds and poultry. END is so virulent that many 
birds and poultry die without showing any clinical signs. A death rate 
of almost 100 percent can occur in unvaccinated poultry flocks. END can 
infect and cause death even in vaccinated poultry.
    The regulations in ``Subpart A--Exotic Newcastle Disease (END)'' (9 
CFR 82.1 through 82.16, referred to below as the regulations) were 
established to prevent the spread of END in the United States in the 
event of an outbreak. These regulations specify the conditions under 
which certain articles, including live birds and live poultry, dead 
birds and dead poultry, manure and litter, eggs other than hatching 
eggs, hatching eggs, and vehicles and conveyances, may be moved out of 
areas listed in Sec.  82.3 as quarantined for END.
    On March 27, 2006, we published in the Federal Register (71 FR 
15047-15059, Docket No. APHIS-2006-0036) a proposal \1\ to amend the 
regulations by adding an option for the movement of pet birds; adding 
restrictions on the interstate movement of live ratites out of 
quarantined areas; harmonizing the domestic and foreign regulations 
regarding the movement of dressed carcasses of dead birds and dead 
poultry, including one change to the importation regulations; providing 
for the use of alternative procedures for treating manure and litter 
and for composting; and adding an additional surveillance period after 
the conditions for removing quarantine are met before quarantine is 
removed.
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    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/fdmspublic/component/
main?main=DocketDetail&d=APHIS-2006-0036.
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    The changes we proposed were based on experience we gained during 
our most recent eradication effort for END. Between November 21, 2002, 
and September 16, 2003, areas of the States of California, Arizona, 
Nevada, New Mexico, and Texas were quarantined due to the presence of 
END. In order to make better decisions on how to eradicate END from 
those areas, we completed several risk assessments and epidemiological 
investigations in the context of our activities under the regulations. 
The experience we gained during those outbreaks in enforcing the 
regulations and conducting the risk assessments and epidemiological 
investigations informed the proposed rule. (The risk assessments are 
available from the person listed under FOR FURTHER INFORMATION 
CONTACT.)
    We solicited comments concerning our proposal for 60 days ending 
May 26, 2006. We received seven comments by that date. They were from 
producers and private citizens. They are discussed below by topic.

Other Live Birds, Including Ratites

    The regulations in Sec.  82.5(b) provide that birds other than pet 
birds and poultry not known to be infected with or exposed to END are 
allowed to be moved interstate from an area quarantined for END only if 
the following conditions are met:
     They are accompanied by a permit;
     They are covered in such a way as to prevent feathers and 
other debris from blowing or falling off the means of conveyance;
     They are moved in a means of conveyance either under 
official seal or are accompanied by a Federal representative;
     They are not unloaded until their arrival at their 
destination listed on the permit, except for emergencies; and
     The permit is presented upon arrival at the destination 
and copies of the permit are submitted so that a copy is received by 
the State animal health official and the veterinarian in charge for the 
State of destination within 72 hours of arrival.
    Birds other than poultry are required to be moved to a site 
approved by the Administrator. Poultry are required to be moved to a 
recognized slaughtering establishment and must be slaughtered within 24 
hours of arrival at such an establishment; the required permit must be 
presented to a State or Federal representative upon arrival at such an 
establishment.
    We proposed to amend the regulations to place the same requirements 
on ratites moved interstate from a quarantined area as we do on 
poultry. The term ``ratites'' encompasses cassowaries, emus, kiwis, 
ostriches, and rheas. Surveillance of these birds for infection with 
END is more difficult than surveillance of poultry. Detection of virus 
shedding in live ratites is unpredictable. Examiners may not always be 
able to detect END infection by examination or testing of swabs for 
virus, which are the standard procedures for testing other birds whose 
movement is regulated under Sec.  82.5(b). Tissue samples can provide 
additional certainty in diagnosing END; however, while the death loss 
rates in production flocks of poultry mean that tissue samples are 
normally available for testing, the death loss rates in flocks of 
ratites are much lower, meaning that tissue samples of ratites may be 
unavailable. The relative lack of dead ratites for surveillance 
purposes also means that tests on tissues of dead ratites are less 
reliable than tests on tissues of dead poultry. For these reasons, no 
consensus exists on optimal surveillance techniques for END in live 
ratites. This means that any determination that ratites to be moved 
interstate from a quarantined area are not known to be infected with 
END is, at best, uncertain.
    In addition, it is often difficult to determine whether ratites 
have been exposed to END; they are mostly maintained in outdoor pens or 
in backyard flocks, which are often less biologically secure than the 
facilities in which commercial flocks of poultry are maintained. 
Ratites that have been kept in these conditions within a quarantined 
area may, therefore, be more likely to have been exposed to END than 
other birds kept under more biologically secure conditions. Finally, 
ratites typically live in highly concentrated populations, meaning that 
END could be spread quickly by an infected or exposed ratite moved 
interstate from a quarantined area.
    Slaughtering and disposing of live poultry moved interstate from a 
quarantined area, as required by Sec.  82.5(b), ensures that END virus 
is not spread from any poultry that, despite not being known to be 
infected with or exposed to END, may pose a risk of spreading the END 
virus during interstate movement. We proposed to require that ratites 
be moved to slaughter under the same conditions as live poultry to 
ensure that the END virus would not be spread through the movement of 
ratites from quarantined areas.
    We received three comments on this proposed change. All three of 
the commenters opposed the change, stating instead that ratites should 
be treated similarly to other birds and allowed to move from the 
quarantined area without moving directly to slaughter. Instead, the 
commenters favored testing and holding the ratites under quarantine 
until they were proved not to be infected with END. Two of the 
commenters stated that there are tests that can identify END in 
ratites, making such a policy feasible.
    We agree that there are methods that can be used to test ratites 
for END. As discussed in the proposed rule, however, surveillance of 
these birds for infection with END is more difficult than surveillance 
of poultry. Detection of virus shedding in live ratites is 
unpredictable. Examiners may not always be able to detect END infection 
by examination or testing of swabs for virus, which are the standard 
procedures for testing other birds whose movement is regulated by Sec.  
82.5(b). Tissue samples can provide additional

[[Page 30293]]

certainty in diagnosing END; however, while the death loss rates in 
production flocks of poultry mean that tissue samples are normally 
available for testing, the death loss rates in flocks of ratites are 
much lower, meaning that tissue samples of ratites may be unavailable. 
For these reasons, no consensus exists on optimal surveillance 
techniques for END in live ratites. Given that and the other risk 
factors described above, we believe that the risk associated with the 
interstate movement of ratites is similar to that associated with the 
interstate movement of poultry, and that the same restrictions on that 
movement are warranted.
    One commenter stated that her own research had not shown ostrich to 
be especially susceptible to END or to have been a factor for the 
spread of END during the 2002-2003 END outbreaks.
    During the 2002-2003 END outbreaks, we required ratites moved 
interstate from the quarantined area to be moved directly to slaughter, 
based on a risk assessment we conducted. This risk assessment and our 
experience in the 2002-2003 END outbreak led us to propose this change. 
The fact that ratites were not a factor for the spread of END during 
the 2002-2003 outbreak is therefore not inconsistent with the change we 
proposed.
    Two of these commenters provided additional information for the 
section of our economic analysis that addressed the potential economic 
impact of this change, mostly related to the size of the ratite 
industry. We have used this information to update our economic 
analysis.
    The commenters additionally expressed concern that the change would 
have catastrophic economic effects on the ratite industry.
    Whenever END is detected in the United States, we will pursue 
eradication of the disease. Any quarantine for END would be temporary 
and local, thus minimizing the number of ratite operations affected by 
the requirement that ratites that are moved from the quarantined area 
be moved directly to slaughter. (Ratite flock owners whose flocks are 
not known to be infected with or exposed to END could also keep their 
flock in place during the quarantine.) The potential economic effects 
of this change, in the event of an END outbreak, are discussed in more 
detail under the heading ``Executive Order 12866 and Regulatory 
Flexibility Act'' later in this document.
    Our proposed changes classified birds that could be moved from the 
quarantined area as pet birds, other birds, and poultry and ratites. 
One commenter, a racing pigeon association, recommended that racing 
pigeons be considered ``other birds'' rather than pet birds. The 
commenter stated that pets are essentially animals that are kept by 
humans for companionship; pigeon fanciers do not keep racing pigeons as 
pets, but as the necessary element in their hobby of breeding and 
racing pigeons. Racing pigeons are highly trained, fed careful diets, 
kept on a strict sanitary and medical regimen, and much prized for 
their athletic accomplishments. Pigeon fanciers do not look to their 
loft of birds, typically 60 to 100 in number, for companionship. The 
commenter also stated that racing pigeons are thoroughbreds and that 
championship birds can be worth thousands of dollars.
    We agree with the commenter. During the 2002-2003 END outbreak, we 
considered racing pigeons to be ``other birds,'' and we will do so if 
another END outbreak occurs in the United States. Because the 
definition of pet bird in Sec.  82.1 reads ``Any bird that is kept for 
personal pleasure and is not for sale,'' and because the commenter has 
presented convincing evidence that racing pigeons meet neither of these 
criteria, we believe that the regulations already accommodate the 
policy suggested by the commenter.

Other Comments

    One commenter stated that the proposed rule was not in accord with 
the Terrestrial Animal Health Code published by the World Organization 
for Animal Health (OIE), specifically Chapter 2.7.13, Newcastle 
Disease, and Chapter 1.3.5, Zoning and Compartmentalization.\2\
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    \2\ The Terrestrial Animal Health Code can be viewed on the 
Internet at http://www.oie.int/eng/normes/mcode/en_sommaire.htm.
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    The Terrestrial Animal Health Code is designed to provide a 
science-based reference document for international trade in animals and 
animal products. OIE guidelines are not intended to be prescriptive; 
each member nation sets its regulatory policy based not only on the 
Code but also on, among other things, local conditions. The commenter 
did not specify what provisions of the proposed rule were inconsistent 
with the Terrestrial Animal Health Code. We believe the changes we 
proposed are appropriate for eradicating END within the United States. 
We are making no changes in response to this comment.
    One commenter stated that poultry become infected with END when 
they are kept in conditions that adversely affect their welfare. This 
commenter also stated that the interstate movement of poultry should 
not be allowed for any reason.
    Poultry become infected with END when they are exposed to its 
causal virus. We may restrict the movement of poultry or any other 
animal only to the extent that such restrictions are necessary to 
prevent the introduction or spread of a pest or disease of livestock.
    One commenter recommended that we require the complete and 
immediate incineration of all poultry carcasses known to be infected 
with END. The commenter recommended that we accomplish this by 
requiring all poultry producers to have a dual-chambered, 
environmentally safe incinerator on their premises. The commenter 
stated that such a requirement would eliminate the risk associated with 
moving the carcasses of infected poultry from a premises to an 
incinerator.
    The commenter is correct that such a policy would directly address 
the risk associated with the movement of carcasses of infected poultry. 
However, we believe that the movement of such carcasses to an 
incinerator can be done safely if biological security protocols are 
followed. Therefore, an on-premises incinerator requirement is 
unnecessary. We will continue to work with States and industry to 
determine the safest and most efficient ways to dispose of carcasses of 
poultry infected with or exposed to END and other highly virulent 
poultry diseases.

Miscellaneous Change

    The regulations in 9 CFR 94.6 address the importation into the 
United States of carcasses of game birds from regions where END is 
considered to exist. Paragraph (b)(1) of this section allows the 
carcasses of game birds to be imported into the United States as long 
as they are eviscerated and their heads and feet have been removed. In 
the proposed rule, we stated that the importation of such carcasses 
poses a high risk of introducing END into the United States and 
proposed to remove and reserve paragraph Sec.  94.6(b)(1).
    Since the publication of the proposed rule, we have completed a 
more thorough risk assessment of the risk associated with importing 
carcasses of game birds, as part of a risk assessment supporting the 
development of regulations for the importation of poultry and poultry 
products from regions where highly pathogenic avian influenza exists. 
This risk assessment, which will be published in completed form along 
with a rule proposing such regulations, indicates that the risk of 
disease introduction associated with the importation of game bird 
carcasses under the conditions specified in

[[Page 30294]]

Sec.  94.6(b)(1) is actually low. The carcass preparation process for 
game birds makes the tissue unsuitable for virus survival, and game 
bird carcasses typically do not come into contact with poultry 
populations, because the carcasses are intended for home display. 
Therefore, this final rule withdraws that proposed amendment and leaves 
Sec.  94.6(b)(1) unchanged.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
change discussed in this document.
    This final rule also serves to affirm the last 4 interim rules in a 
series of 10 interim rules we published between November 2002 and 
September 2003. The first six interim rules amended the regulations in 
part 82 by adding portions of Arizona, California, Nevada, New Mexico 
and Texas to the list in Sec.  82.3 of areas quarantined for END; the 
final four interim rules subsequently removed all those areas from that 
list. The 10 interim rules elicited a total of 11 comments, only 2 of 
which were germane to the action taken in the interim rule (i.e., the 
addition or removal of an area from quarantine). In both cases, the 
commenters pointed out the need for adequate surveillance to ensure the 
complete eradication of END in an area before it is removed from 
quarantine. In this final rule, we supplement the conditions for 
removing an area from quarantine by requiring an additional 
surveillance period after those conditions have been met before the 
quarantine will be removed. As noted in the proposed rule, we made that 
amendment based on information gained during the 2002-2003 END 
outbreak, which includes the information contained in the comments we 
received on the interim rules.

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.
    We are making several changes to the END domestic quarantine 
regulations, including adding an option for the movement of pet birds; 
adding restrictions on the interstate movement of live ratites out of 
quarantined areas; harmonizing our domestic and import regulations 
regarding the movement of dressed carcasses of dead birds and dead 
poultry; providing for the use of alternative procedures for treating 
manure and litter and for composting; and adding an additional 
surveillance period after the conditions for removing quarantine are 
met before quarantine is removed. We concluded that these changes are 
necessary based on our experiences during the eradication programs for 
the 2002-2003 outbreaks of END in California, Arizona, Nevada, and 
Texas. In the event of an END outbreak, these changes will help to 
ensure that END does not spread from quarantined areas and that END is 
eradicated within quarantined areas.
    END, also known as velogenic viscerotropic Newcastle disease, is a 
highly contagious and fatal viral disease affecting all species of 
birds. END is one of the most infectious and virulent diseases of 
poultry in the world, and the infection often results in many birds 
dying before demonstrating any clinical signs of infection. In 
unvaccinated poultry flocks, END has a death rate of close to 100 
percent. Moreover, the mortality rates in vaccinated flocks are 10 to 
20 percent, clearly showing that vaccination does not guarantee 
complete protection against END.
    END was first identified in the United States in 1950 in 
California. The outbreak was traced to game birds and pheasants 
imported from Hong Kong. The disease spread to five poultry farms in 
Contra Costa County, but was quickly eliminated by destroying infected 
chickens. In 1971, a major outbreak of END occurred in California 
commercial poultry and lasted for 2 years. As a result of that outbreak 
1,341 infected flocks were identified, and almost 12 million birds were 
destroyed. The eradication program cost taxpayers $56 million ($228 
million in 2002 dollars), severely disrupted the operations of many 
producers, and increased the prices of poultry and poultry products to 
consumers.
    On October 1, 2002, END was confirmed in backyard poultry in 
Southern California. The disease spread from backyard poultry to 
commercial poultry operations in California, backyard poultry in Nevada 
and Arizona, and poultry in Texas. The U.S. Department of Agriculture 
(USDA)'s Animal and Plant Health Inspection Service (APHIS) took the 
lead in END eradication efforts. Immediately a task force of over 1,500 
people from APHIS, the California Department of Food and Agriculture, 
and other State and Federal agencies combined forces to fight this 
devastating disease. Almost 4 million birds were destroyed to contain 
the spread of END.

Economic Analysis

    The final rule change to the END regulations will have an effect on 
all persons and entities handling birds of any type, including farm and 
commercial operations, backyard flock owners and enthusiasts, and pet 
bird owners in an END quarantined area wishing to engage in interstate 
movement. While accurate statistics on farm and commercial operations 
in the United States are readily available, there is a significant 
information gap on the backyard flocks and pet bird owners. As such, we 
have no way of quantifying the true number of persons affected by these 
changes.
    The United States is the world's largest producer of poultry meat 
and the second-largest egg producer behind China. Preliminary reports 
for the year 2005 indicate there were a total of 452.8 million 
chickens, excluding commercial broilers, with a cash value of over 
$1.133 billion. In 2004 broiler production, raised for the purpose of 
meat production, totaled 8.7 billion birds, with a combined live weight 
of over 45.7 billion pounds. The value of broiler production for that 
year was over $20.4 billion. In 2004, the last full report available, 
there were over 89 billion eggs produced with a cash value of over $5.3 
billion.\3\ Preliminary statistics for 2004 indicate that turkey 
production totaled over 264 million birds with a combined live weight 
of 7.3 billion pounds and a cash value of over $3 billion.\4\
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    \3\ USDA, Agricultural Statistics 2006. Washington, D.C.: 
National Agricultural Statistics Service, 2006. Estimates cover the 
12-month period, December 1 of the previous year through November 
30.
    \4\ USDA, Agricultural Statistics 2006. Estimates based on 
turkeys placed September 1, 2003 through August 31, 2004 and 
excludes young turkeys lost.
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    The U.S. poultry industry plays a significant role in international 
trade. In fact, the United States is the world's largest exporter of 
turkey products, and the second largest exporter of broilers. In 2005, 
broiler exports totaled 5.1 billion pounds, valued at $2.1 billion.\5\ 
Turkey exports for the same year totaled over 541 million pounds, with 
a total value of about $369 million. In addition, 61.8 million dozen 
shell eggs for consumption, and 55 million pounds of egg products were 
exported in 2005.\6\ The presence of END in the United States would 
significantly reduce our ability to be competitive in international 
markets in the trade of poultry and poultry products. By extension, any 
efforts made to contain and prevent the spread of END throughout the 
United States would serve to enhance our reputation for providing high-
quality products. Thus, the changes in this rule

[[Page 30295]]

will benefit the commercial poultry industry by increasing product 
marketability, both domestically and internationally.
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    \5\ USDA-ERS, Background Statistics on U.S. Broiler Industry. 
Washington, D.C.: Economic Research Service, 2006.
    \6\ USDA-FAS, U.S. Trade Statistics. Washington, D.C.: Foreign 
Agricultural Service, 2006.
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    This final rule also impacts the movement of ratites out of a 
quarantined area. Ratites are a family of flightless birds with small 
wings and flat breastbones. Domestic production of ratites is limited 
to ostriches and emus. This alternative livestock industry is still in 
its infancy, so new in fact that ratites have only been under mandatory 
USDA inspection since April 22, 2002, and were first included as a 
separate line item in the 2002 USDA Census of Agriculture. Ostrich was 
the first ratite to be raised in the United States. According to the 
2002 Census of Agriculture, there are 5,224 farms raising a total of 
48,221 emus, and 1,643 farms holding an inventory of 20,560 ostriches. 
Additionally, there were 15,682 emus and 16,038 ostriches sold 
according to Census data.\7\ Ostriches are raised primarily for meat, 
with an average bird yielding about 75-100 pounds of meat, whereas emus 
are raised primarily for oil. According to American Ostrich Association 
(AOA) estimates, approximately 500,000 to 750,000 pounds of ostrich 
meat were processed from domestically produced ostrich in 2005, with a 
slaughter price of $1 per pound live weight. Due to a fluctuating 
market for oil, the value of emu production is indeterminate at this 
time. While U.S. farms raising ratites can have an inventory ranging 
from 2 to 2,000 birds, the AOA estimates that there are probably less 
than a dozen farms in the United States with 100 or more birds.\8\ 
Based on these estimates, as well as Census data, we can assume the 
majority of ratite farmers would be considered small entities by SBA 
standards.\9\
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    \7\ USDA, 2002 Census of Agriculture--Table 27. Washington, 
D.C.: National Agricultural Statistics Service, 2006.
    \8\ Source: Dianna Westmoreland and Carole Price of the AOA, 
through submitted comments and personal communication.
    \9\ A small ratite farm is one having $750,000 or less in annual 
receipts. North American Industry Classification System (NAICS) code 
112390, ``Other Poultry Production,'' which includes duck, emu, 
geese, ostrich, pheasant, quail and ratite production. Table of Size 
Standards based on NAICS 2002. Washington, D.C.: U.S. Small Business 
Administration, effective July 31, 2006.
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    Comments on the interim rule expressed concern over the continued 
presence of the U.S. ratite industry in light of movement restrictions 
put in place by this rule. However, we feel confident in our position 
that the ratite industry will not be significantly affected by this 
rule, especially not to the extent that the industry will no longer be 
viable. This rule will only affect those ratite owners located in an 
area quarantined for END who wish to move their ratites interstate. It 
is important to note that any area deemed necessary to be quarantined 
will be as small as possible, and will only be quarantined for a 
limited period of time, until the disease is eradicated. Farms raising 
ostriches and emus within the quarantined area will have the option of 
moving their birds directly to slaughter. The rule will impact ratite 
owners located in a quarantined area that move day-old or infant ratite 
birds interstate to farms where the birds are then raised, but we do 
not believe this impact will be significant, especially considering the 
quarantine would be in place for a limited time.
    In addition, the regulations will affect backyard poultry not kept 
for commercial sale and pet owners in the quarantined area, the number 
of which is indeterminate. Although the specific numbers of persons in 
this category are unknown, we feel safe in determining that the impact 
of this regulation will not be significant as it only affects those 
owners located within a quarantined area for the limited time the 
quarantine is actually in place. The remainder of this analysis will 
consider each of the major changes in the final rule individually and 
examine the expected benefits and costs.

Live Pet Birds

    The regulations in Sec.  82.5 have prohibited the movement of pet 
birds out of a quarantined area unless they have been in the owner's 
control for 90 days. The final rule adds a new option that allows pet 
birds, except those that are imported for eventual resale as pets, that 
have been in the owner's control for less than 90 days to be moved out 
of the quarantined area if they enter a 30-day quarantine at a USDA 
quarantine station outside of the quarantined area and meet all other 
requirements for movement. There is a user fee of $390 to enter into 
this 30-day USDA quarantine station. Entering into this quarantine 
station is voluntary and is meant to increase the flexibility for pet 
owners who have been in control of their pet birds for less than 90 
days. Intuitively, we expect only those pet owners who consider the 
value of protecting and moving their birds out of the quarantine area 
to be higher than the expense of the $390 fee to voluntarily enter the 
USDA facility. While that does pose an expense to pet owners, in light 
of the fact that the option allows for interstate movement where the 
regulations otherwise do not, it is safe to assume the cost is not 
overly burdensome for those pet owners deciding to enter their birds 
into the USDA facility.
    Those birds that are imported for eventual resale as pets, which 
fall under the added definition of commercial birds, are not bound by 
the restrictions in Sec.  82.5(a). Current regulations require that 
commercial birds be imported from and into biologically secure 
facilities. As such, birds imported for eventual resale as pets have 
already met the necessary requirements to be determined free of END. 
This amendment is more of a clarification rather than an actual change 
in movement requirements. Generally, END regulations governing pet 
birds are more restrictive than for other birds due to the fact that 
there are fewer biological security measures in place, and pet birds 
are thus more vulnerable to contracting and spreading END.

Other Live Birds, Including Ratites

    Ratites tend to be housed in outdoor pens or backyard flocks, 
thereby making surveillance of these birds for END more difficult. 
Also, virus detection techniques that are widely used to detect END 
were inconclusive when used on ratites. Combined, this creates a 
situation where infection of ratites in a quarantined area is highly 
possible and detection is uncertain, thus increasing the risk for 
widespread END dissemination. Consequently, this final rule amends 
Sec.  82.5(b)(5) to prohibit interstate movement of ratites from an 
area quarantined for END unless they are moved to a recognized 
slaughtering establishment and slaughtered within 24 hours of arrival 
at that establishment.
    Previously, ratites not known to be infected with or exposed to END 
were allowed to move interstate as long as they were accompanied by a 
permit. Coupled with the knowledge that epidemiological tests for END 
were inconclusive in ratites, this created a situation where the 
dissemination of END was possible. In situations where ratites were 
thought to be exposed to END, these flocks were depopulated and the 
owners were paid indemnity based on current market values. While this 
rule places additional restrictions on the movement of ratites from 
areas quarantined because of END, we do not believe the economic 
effects of this rule will be significant. Even though the interstate 
movement of ratites from a quarantined area must be directly to 
slaughter, the marketability of meat and oil, which are the primary 
markets for the ratite industry, are not adversely affected by this 
movement restriction. Essentially, this change in the regulations seeks 
to increase biological

[[Page 30296]]

security measures by restricting the movement of ratites from 
quarantined areas. We do not expect the economic impacts to affected 
producers of ratites to be significant.

Dressed Carcasses of Dead Birds and Dead Poultry

    We will harmonize Sec.  82.6 with the regulations in Sec.  94.6 
under which carcasses, and parts or products of carcasses, of birds and 
poultry may be imported into the United States from an area where END 
is considered to exist. The principal effect of this change will be to 
prohibit any movement of uncooked bird or poultry meat out of a 
quarantined area. Only meat that has both been packed in hermetically 
sealed containers and cooked by a commercial method after packing to 
produce articles that are shelf-stable without refrigeration, or cooked 
so that it has a thoroughly cooked appearance throughout, will be 
allowed to move from the quarantined area. The regulations had not 
required sealing and commercial cooking, so these new regulations are 
intended to provide a higher level of protection against the spread of 
END. The cost burdens of these changes are fairly obvious for those 
producers in a quarantined area engaged in the interstate movement of 
dead birds and poultry. Specifically, these costs include gathering 
materials to seal the dead birds or poultry; the expense of electricity 
and/or gas, and perhaps equipment, needed to commercially cook the dead 
birds or poultry, and the additional labor costs associated with this 
change. These costs vary by producer. We do not anticipate these costs 
will significantly impact producers, the majority of which are small 
entities. The major benefit of this change, outside of increasing 
safeguards against END, is to harmonize our domestic requirements for 
movement out of a quarantined area with our import requirements for 
dressed carcasses from regions where END is known to exist.

Manure and Litter

    Previously the only way manure and litter used by birds and poultry 
not known to be infected with END could be moved interstate from a 
quarantined area was by heating throughout to a temperature of not less 
than 175 [deg]F along with other requirements. This rule will provide 
producers with additional flexibility by providing for the use of any 
alternative treatment that is determined by the Administrator to be 
adequate in preventing the dissemination of END. This change would 
result in a potential decrease in cost, as we assume producers are 
profit-maximizing entities; hence, it is safe to assume any alternative 
treatment proposed and accepted will be cheaper than the heat treatment 
previously required. As such, it is hard to quantify the actual cost 
savings of this change in the regulations as it will vary based on the 
alternative chosen.
    Also, this rule establishes a procedure under which composted 
manure and/or litter from infected premises will be allowed to move 
outside the quarantined area. The regulations in Sec.  82.7(a)(2) have 
prohibited the movement from a quarantined area of any manure or litter 
from infected premises, so this amendment will allow producers greater 
flexibility. Thus, we expect that producers will benefit by having 
greater flexibility and the opportunity to decrease their present costs 
by looking into additional options for the disposal of manure and 
litter.

Eggs, Other Than Hatching Eggs

    This final rule adds performance standards for processing plants 
that prepare eggs for eventual sale. In an effort to increase 
biological security at these sites, these processing plants will have 
to meet several standards, including:
     Physically separating processing and layer facilities, the 
incoming and outgoing eggs by quarantined and non-quarantined areas, 
and any flocks that may reside at the processing plant.
     Putting in place adequate controls to ensure processing 
plants are not exposed to END by any outside sources (i.e. those 
persons higher up in the vertical chain of production).
     Disinfecting equipment in accordance with 9 CFR part 71 at 
intervals deemed appropriate by the Administrator, so that there is 
less of a chance the equipment will transmit END to the eggs being 
processed.
    Implementing these biological security standards will pose some 
burdens on processing plants. The actual cost imposed is 
indeterminable, because that will vary by processing plant. However, it 
is of note that the majority of these standards have to do with 
modifications in the procedures rather than any sort of capital 
investment. As such, it is not expected that processing plants will 
incur a significant economic burden by conforming to these standards.

Hatching Eggs

    This change in the regulations will better harmonize domestic 
requirements for the movement of hatching eggs from a quarantined area 
with the import requirements for hatching eggs from regions where END 
is considered to exist. As a result, persons wishing to move hatching 
eggs out of a quarantined area must now follow the procedures in the 
National Poultry Improvement Plan for sanitizing hatching eggs, as 
found in 9 CFR 147.22 and 147.25. By harmonizing our domestic 
requirements with our import requirements, the conditions governing the 
movement of hatching eggs out of quarantined areas will be slightly 
more restrictive. However, this change is not expected to pose a 
significant economic burden upon affected entities.

Removal of Quarantine

    Finally, before the quarantine is lifted, birds and poultry that 
died from any cause other than slaughter, along with accompanying 
manure and litter generated by these birds and poultry, must be 
disposed of using an approved method, including composting. This final 
rule will allow the use of any alternative composting treatment that is 
determined by the Administrator to be adequate to prevent the 
dissemination of END. This amendment is expected to produce cost 
savings, as we would expect producers to only adopt alternative 
treatment mechanisms that are cheaper than those currently prescribed. 
In addition, the regulations will require follow-up surveillance after 
a quarantined area has fulfilled all requirements to have the 
quarantine lifted. The time period necessary to conduct this follow-up 
surveillance will be determined by the Administrator of APHIS. This 
additional observation period will ensure the quarantine is not lifted 
prematurely.

Impact on Small Entities

    This final rule's amendments to the regulations are intended to 
ensure that any future END outbreaks in the United States are contained 
to as small an area as possible while allowing emergency authorities 
the flexibility to choose the methods best suited to meet that goal. 
Costs of complying with the regulations are relatively minimal and for 
the most part are not borne by producers. Specifically, there will be a 
user fee of $390 to enter the 30-day USDA quarantine station for those 
pet owners in control of their pets for less than 90 days wishing to 
move their birds interstate. In order to comply with those regulatory 
changes that will harmonize domestic and import regulations for END, 
producers located within the quarantined area wishing to engage in 
interstate movement of dead birds and poultry must sustain the costs 
relating to sealing and commercially cooking the birds. In the case of 
processing plants,

[[Page 30297]]

the costs inherent in complying with the change in the regulations are 
not expected to require capital investment; rather, there will be the 
cost of extra labor and materials required with respect to meeting the 
amended standards. Finally, State and/or Federal Governments, depending 
on the type of quarantine, must shoulder the cost of inspection and 
certification of hatching eggs from a quarantined area. The benefits of 
the changes in this rule aimed at ensuring more efficient and effective 
END containment and eradication efforts are numerous. In many cases, 
the actual benefit in monetary terms is not possible to quantify. For 
example, pet bird owners in control of their pets for less than 90 days 
are afforded the opportunity to move their pets from the quarantined 
area. Alternative treatment procedures for moving manure and litter 
from a quarantined area will be considered and accepted by APHIS, thus 
lifting some of the cost burdens previously faced by producers. Most 
importantly, the changes in this final rule are intended to reduce and 
even eliminate biological security hazards associated with END. The 
costs of compliance are insignificant in comparison to the benefits of 
containing and eradicating END in domestic flocks. Therefore, APHIS 
believes the net benefit of this rule will be positive.
    The Regulatory Flexibility Act requires that agencies consider the 
economic impact of a regulation on small entities. The 2002 
Agricultural Census estimated there were 83,381 domestic poultry and 
egg farms, with a total market value over $23.9 billion. Unfortunately, 
concrete information on the size distribution is unknown, but the 
census does indicate that only 8,791, or 10.5 percent, of those poultry 
operations have sold between $500,000 and $999,999 in market value of 
agricultural products.\10\ Also, as was mentioned on the outset, the 
ratite farming industry is in its infancy. Therefore, it would be safe 
to assume that the majority of poultry operations in the United States 
are classified as small entities.\11\ While we acknowledge that these 
small entities will incur some costs of compliance, we do not believe 
these costs are significant. Further, it is vital to remember that this 
final rule affects only those small poultry operations located within 
an area quarantined for END, and only for as long as the quarantine is 
in place.
---------------------------------------------------------------------------

    \10\ USDA, 2002 Census of Agriculture, Table 56. Washington, DC: 
National Agricultural Statistics Service, 2006.
    \11\ A small chicken egg operation is one having $10.5 million 
or less in annual receipts. All other poultry products and meat 
operations are small if they have $750,000 or less in annual 
receipts. Table of Size Standards based on NAICS 2002. Washington, 
DC: U.S. Small Business Administration, effective July 31, 2006.
---------------------------------------------------------------------------

    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 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This 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 in conflict with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This final 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 for 9 CFR Part 82

    Animal diseases, Poultry and poultry products, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

0
Accordingly, we are amending 9 CFR part 82 as follows:

PART 82--EXOTIC NEWCASTLE DISEASE (END) AND CHLAMYDIOSIS

0
1. The authority citation for part 82 continues to read as follows:

    Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.


0
2. Section 82.1 is amended as follows:
0
a. By removing the definition of pet bird.
0
b. By adding, in alphabetical order, definitions of commercial birds, 
pet birds, and ratites to read as set forth below.
0
c. By revising the definition of dressed carcasses to read as set forth 
below.


Sec.  82.1  Definitions.

* * * * *
    Commercial birds. Birds that are moved or kept for resale, 
breeding, public display, or any other purpose, except pet birds.
    Dressed carcasses. Carcasses of birds or poultry that have been 
eviscerated, with heads and feet removed, or parts or products of such 
carcasses.
* * * * *
    Pet birds. Birds, except ratites, that are kept for the personal 
pleasure of their individual owners and are not intended for resale.
* * * * *
    Ratites. Cassowaries, emus, kiwis, ostriches, and rheas.
* * * * *


Sec.  82.4  [Amended]

0
3. In Sec.  82.4, paragraph (a)(2) is amended by adding the words ``, 
except as provided in Sec.  82.7(b)'' after the word ``END''.

0
4. Section 82.5 is amended as follows:
0
a. By revising paragraph (a) and the introductory text of paragraph (b) 
to read as set forth below.
0
b. In paragraph (b)(5), by adding the words ``or ratites'' after the 
word ``poultry'' each time it occurs.


Sec.  82.5  Interstate movement of live birds and live poultry from a 
quarantined area.

    (a) Pet birds. An individual may move his or her pet birds 
interstate from a quarantined area only if the birds are not known to 
be infected with or exposed to END and the following requirements are 
fulfilled:
    (1) Epidemiological and testing requirements. For all pet birds 
moved interstate, epidemiological evidence must indicate that the birds 
are not infected with any communicable disease.
    (i) Pet birds that have been under the control and ownership of the 
owner for at least 90 days. Pet birds that have been under the 
ownership and control of the individual to whom the permit is issued 
for the 90 days before interstate movement, show no clinical signs of 
sickness (such as diarrhea, nasal discharge, ocular discharge, ruffled 
feathers, or lack of appetite) during the 90 days before interstate 
movement, and have been maintained apart from other birds and poultry 
in the quarantined area during the 90 days before interstate movement 
may be moved to a location outside the quarantined area for subsequent 
examination. The individual to whom the permit is issued must maintain 
ownership and control of the birds and maintain them apart from other 
birds and poultry from the time they arrive at the place to which the 
individual is taking them until a Federal

[[Page 30298]]

representative or State representative \3\ examines the birds and 
determines that the birds show no clinical signs of END. The 
examination will not be less than 30 days after the interstate 
movement. The individual to whom the permit is issued must allow 
Federal representatives and State representatives to examine the birds 
at any time until they are declared free of END by either a Federal 
veterinarian or a State veterinarian.
---------------------------------------------------------------------------

    \3\ The location of Federal representatives and State 
representatives may be obtained by writing to Emergency Programs, 
Veterinary Services, Animal and Plant Health Inspection Service, 
4700 River Road, Unit 41, Riverdale, MD 20737-1231.
---------------------------------------------------------------------------

    (ii) All other pet birds. Pet birds that do not meet the criteria 
in paragraph (a)(2)(i) of this section may only be moved to a USDA-
approved quarantine facility outside the quarantined area for a 30-day 
quarantine before being released. The individual to whom the permit is 
issued must maintain ownership and control of the birds and maintain 
them isolated from other birds or poultry until the time they arrive at 
the USDA-approved quarantine facility. The pet bird owner is 
responsible for all costs associated for keeping his or her pet birds 
at the USDA-approved quarantine facility for the 30-day quarantine 
period.
    (2) Movement restrictions. All pet birds must be moved interstate 
from a quarantined area under the following conditions:
    (i) The birds are accompanied by a permit obtained in accordance 
with Sec.  82.11.
    (ii) The birds are moved interstate by the individual to whom the 
permit is issued.
    (iii) The birds are caged while being moved interstate.
    (iv) Within 24 hours of a bird's dying or showing clinical signs of 
sickness (such as diarrhea, nasal discharge, ocular discharge, ruffled 
feathers, or lack of appetite), the individual to whom the permit is 
issued notifies the veterinarian in charge or the State animal health 
official \4\ in the State to which the birds are moved.
---------------------------------------------------------------------------

    \4\ The location of the veterinarian in charge or the State 
animal health official may be obtained by writing to Emergency 
Programs, Veterinary Services, Animal and Plant Health Inspection 
Service, 4700 River Road, Unit 41, Riverdale, MD 20737-1231, or by 
referring to the local telephone book.
---------------------------------------------------------------------------

    (v) The individual to whom the permit is issued submits copies of 
the permit so that a copy is received by the State animal health 
official and the veterinarian in charge for the State of destination 
within 72 hours of the arrival of the birds at the destination listed 
on the permit.
    (b) Other birds (including commercial birds) and poultry. Except as 
provided for pet birds in paragraph (a) of this section, a person may 
move live birds (including commercial birds) and live poultry that are 
not known to be infected with or exposed to END interstate from a 
quarantined area only if:
* * * * *

0
5. In Sec.  82.6, paragraph (b) is revised to read as follows.


Sec.  82.6  Interstate movement of dead birds and dead poultry from a 
quarantined area.

* * * * *
    (b) Dressed carcasses from birds and poultry that are not known to 
be infected with END may be moved interstate from a quarantined area 
only if:
    (1) The dressed carcasses are from birds or poultry that were 
slaughtered in a recognized slaughtering establishment; \6\
---------------------------------------------------------------------------

    \6\ See footnote 5 to Sec.  82.5.
---------------------------------------------------------------------------

    (2) The dressed carcasses have been processed in one of the 
following ways:
    (i) They are packed in hermetically sealed containers and cooked by 
a commercial method after such packing to produce articles which are 
shelf-stable without refrigeration; or
    (ii) They have been thoroughly cooked and have a thoroughly cooked 
appearance throughout;
    (3) If the dressed carcasses are from poultry, the processing 
establishment that treats the dressed carcasses in accordance with 
paragraph (b)(2) of this section employs the following safeguards:
    (i) If receiving or handling any live poultry, there must be 
complete separation between the slaughter portion of the establishment 
and the portions of the establishment in which further processing takes 
place;
    (ii) If the plant processes dressed carcasses from both quarantined 
and nonquarantined areas, all areas, utensils, and equipment likely to 
contact the poultry carcasses to be processed, including skimming, 
deboning, cutting, and packing areas, are cleaned and disinfected in 
accordance with part 71 of this chapter between the processing of 
dressed poultry carcasses from the quarantined area and the processing 
of dressed poultry carcasses from nonquarantined areas;
    (iii) The dressed carcasses are stored in a manner that ensures 
that no cross-contamination with potentially infectious materials, such 
as raw or unprocessed products, occurs;
    (4) The dressed carcasses are accompanied by a permit obtained in 
accordance with Sec.  82.11;
    (5) The dressed carcasses are moved in a means of conveyance either 
under official seal or accompanied by a Federal representative;
    (6) The dressed carcasses are not unloaded until their arrival at 
the destination listed on the permit required by paragraph (b)(4) of 
this section;
    (7) The dressed carcasses are moved, without stopping, to the 
destination listed on the permit required by paragraph (b)(4) of this 
section, except for normal traffic conditions, such as traffic lights 
and stop signs; and
    (8) Copies of the permit accompanying the dressed carcasses are 
submitted so that a copy is received by the State animal health 
official and the veterinarian in charge for the State of destination 
within 72 hours of the arrival of the dressed carcasses at the 
destination listed on the permit required by paragraph (b)(4) of this 
section.
* * * * *

0
6. Section 82.7 is amended as follows:
0
a. By redesignating paragraphs (a), (b), (c), and (d) as paragraphs 
(a)(1), (a)(2), (a)(3), and (a)(4), respectively, and designating the 
introductory text of the section as paragraph (a).
0
b. In newly redesignated paragraph (a)(2), by adding the words ``or 
subjected to any other treatment approved by the Administrator as being 
adequate to prevent the dissemination of END'' after the words ``not 
less than 175 [deg] F (79.4 [deg] C)''.
0
c. By adding a new paragraph (b) to read as set forth below.


Sec.  82.7  Interstate movement of manure and litter from a quarantined 
area.

* * * * *
    (b) Compost derived from manure generated by and litter used by 
birds or poultry known to be infected with END may be moved interstate 
from a quarantined area only if:
    (1) The manure and litter is accompanied by a permit obtained in 
accordance with Sec.  82.11;
    (2) All birds and poultry have been removed from the premises where 
the manure or litter is held;
    (3) After all birds are removed from the premises where the manure 
or litter is held, all manure and litter inside and outside the bird or 
poultry house remains undisturbed for at least 28 days before being 
moved from the infected premises for composting;
    (4) Composting is done at a site approved by the Administrator and 
under a protocol approved by the Administrator as being adequate to 
prevent the dissemination of END. All

[[Page 30299]]

manure and litter from the infected premises must be moved to the 
composting site at the same time;
    (5) Following the composting process, the composted manure or 
litter remains undisturbed for an additional 15 days before movement;
    (6) After this 15-day period, all of the composted manure or litter 
from the infected site is removed at the same time;
    (7) The resulting compost must be transported either in a 
previously unused container or in a container that has been cleaned and 
disinfected, since last being used, in accordance with part 71 of this 
chapter;
    (8) The vehicle in which the resulting compost is to be transported 
has been cleaned and disinfected, since last being used, in accordance 
with part 71 of this chapter; and
    (9) Copies of the permit accompanying the compost derived from the 
manure and the litter are submitted so that a copy is received by the 
State animal health official and the veterinarian in charge for the 
State of destination within 72 hours of arrival of the compost at the 
destination listed on the permit.

0
7. Section 82.8 is amended as follows:
0
a. In paragraph (a)(2), by removing the citation ``7 CFR part 59'' and 
adding the citation ``9 CFR part 590'' in its place.
0
b. By revising paragraph (a)(3) to read as set forth below.


Sec.  82.8  Interstate movement of eggs, other than hatching eggs, from 
a quarantined area.

    (a) * * *
    (3) The establishment that processes the eggs, other than hatching 
eggs, for sale establishes procedures adequate to ensure that the eggs 
are free of END, including:
    (i) The establishment separates processing and layer facilities, 
the incoming and outgoing eggs at the establishment, and any flocks 
that may reside at the establishment;
    (ii) The establishment implements controls to ensure that trucks, 
shipping companies, or other visitors do not expose the processing 
plant to END;
    (iii) Equipment used in the establishment is cleaned and 
disinfected in accordance with part 71 of this chapter at intervals 
determined by the Administrator to ensure that the equipment cannot 
transmit END to the eggs, other than hatching eggs, being processed; 
and
    (iv) The eggs are packed either in previously unused flats or 
cases, or in used plastic flats that were cleaned or disinfected since 
last being used, in accordance with part 71 of this chapter;
* * * * *

0
8. Section 82.9 is amended as follows:
0
a. In paragraph (b), by removing the word ``and'' at the end of the 
paragraph.
0
b. By redesignating paragraph (c) as paragraph (d).
0
c. By adding a new paragraph (c) to read as set forth below.


Sec.  82.9  Interstate movement of hatching eggs from a quarantined 
area.

* * * * *
    (c) The hatching eggs have been kept in accordance with the 
sanitation practices specified in Sec.  147.22 and Sec.  147.25 of the 
National Poultry Improvement Plan; and
* * * * *

0
9. Section 82.14 is amended as follows:
0
a. In paragraph (c)(2), in the introductory text, by revising the 
second sentence to read as set forth below.
0
b. In paragraph (e)(2), by removing the first sentence and by adding 
two new sentences in its place to read as set forth below.
0
c. By adding a new paragraph (i) to read as set forth below.


Sec.  82.14  Removal of quarantine.

* * * * *
    (c) * * *
    (2) * * * The birds and poultry must be composted according to the 
following instructions or according to another procedure approved by 
the Administrator as being adequate to prevent the dissemination of 
END:
* * * * *
    (e) * * *
    (2) Composting. If the manure and litter is composted, the manure 
and litter must be composted in the quarantined area. The manure and 
litter must be composted according to the following method, or 
according to another procedure approved by the Administrator as being 
adequate to prevent the dissemination of END: Place the manure and 
litter in rows 3 to 5 feet high and 5 to 10 feet at the base. * * *
* * * * *
    (i) After the other conditions of this section are fulfilled, an 
area will not be released from quarantine until followup surveillance 
over a period of time determined by the Administrator indicates END is 
not present in the quarantined area.
* * * * *

    Done in Washington, DC, this 20th day of May 2008.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E8-11741 Filed 5-23-08; 8:45 am]
BILLING CODE 3410-34-P