Federal Register, Volume 75 Issue 45 (Tuesday, March 9, 2010)

[Federal Register Volume 75, Number 45 (Tuesday, March 9, 2010)]
[Rules and Regulations]
[Pages 10645-10658]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4874]

[[Page 10645]]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 53, 56, 145, 146, and 147

[Docket No. APHIS-2005-0109]
RIN 0579-AB99

Low Pathogenic Avian Influenza; Voluntary Control Program and
Payment of Indemnity

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, with changes, an interim rule
that amended the regulations by establishing, under the auspices of the
National Poultry Improvement Plan, a voluntary program for the control
of the H5/H7 subtypes of low pathogenic avian influenza in commercial
poultry. As amended by this document, the rule provides that the amount
of indemnity for which contract growers are eligible will be reduced by
any payment they have already received on their contracts when poultry
in their care are destroyed, clarifies the roles of cooperating State
agencies with respect to H5/H7 low pathogenic avian influenza
outbreaks, provides that consistency with humane euthanasia guidelines
will be considered when selecting a method for the destruction of
poultry, and provides additional guidance for cleaning and disinfecting
an affected premises. The control program and indemnity provisions
established by the interim rule are necessary to help ensure that the
H5/H7 subtypes of low pathogenic avian influenza are detected and
eradicated when they occur within the United States.

EFFECTIVE DATE: March 9, 2010.

FOR FURTHER INFORMATION CONTACT: Mr. Andrew R. Rhorer, Senior
Coordinator, Poultry Improvement Staff, National Poultry Improvement
Plan, Veterinary Services, APHIS, USDA, 1498 Klondike Road, Suite 101,
Conyers, GA 30094-5104; (770) 922-3496.

SUPPLEMENTARY INFORMATION:

Background

The National Poultry Improvement Plan (NPIP, also referred to below
as ``the Plan'') is a cooperative Federal-State-industry mechanism for
controlling certain poultry diseases. The Plan consists of a variety of
programs intended to prevent and control poultry diseases.
Participation in all Plan programs is voluntary, but breeding flocks,
hatcheries, and dealers must first qualify as ``U.S. Pullorum-Typhoid
Clean'' as a condition for participating in the other Plan programs.
The Plan identifies States, flocks, hatcheries, dealers, and
slaughter plants that meet certain disease control standards specified
in the Plan's various programs. As a result, customers can buy poultry
that has tested clean of certain diseases or that has been produced
under disease-prevention conditions. The regulations in 9 CFR parts
145, 146, and 147 (referred to below as the regulations) contain the
provisions of the Plan.
In an interim rule\1\ effective and published in the Federal
Register on September 26, 2006 (71 FR 53601-56333, Docket No. APHIS-
2005-0109), we amended the regulations to establish a voluntary control
program for the H5/H7 subtypes of low pathogenic avian influenza (H5/H7
LPAI) in commercial poultry--specifically, in table-egg layers, meat-
type chickens, and meat-type turkeys. The provisions of this program
were established in a new part 146. The interim rule also established a
new part 56, titled ``Control of H5/H7 Low Pathogenic Avian
Influenza,'' in 9 CFR chapter I, subchapter B, to provide for the
payment of indemnity for costs associated with the eradication of H5/H7
LPAI.
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\1\ To view the interim rule and the comments we received, go to
(http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2005-0109).
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We solicited comments on the interim rule for 60 days ending
November 27, 2006. We received 11 comments by the due date. They were
from State governments, industry associations, advocacy groups, and
private citizens. We have carefully considered all of the comments we
received. They are discussed below by topic.

General Comments

One commenter stated that the conditions under which commercial
poultry are produced cause disease, and that the U.S. Department of
Agriculture (USDA) should prohibit current poultry production
practices.
We do not agree with the commenter's recommendation and do not
believe it is necessary or appropriate to consider such regulation of
poultry production practices in this rulemaking. H5/H7 LPAI is caused
by a virus. The interim rule provided for surveillance programs and
emergency response provisions to detect and eradicate the virus.
The ``Background'' section of the interim rule stated that there
are 15 recognized hemagglutinin (H) subtypes of avian influenza (AI).
One commenter stated that there are 16 such subtypes.
The commenter is correct. Since the regulations do not refer to the
number of hemagglutinin subtypes, no change in the regulations
established by the interim rule is necessary.
The ``Background'' section also stated the following: ``Diagnostic
surveillance [for AI in the United States] is conducted through
industry, State, and university diagnostic laboratories. These
laboratories routinely test for AI, both serologically and by virus
isolation, whenever birds are submitted from a flock with clinical
signs compatible with HPAI or LPAI.'' One commenter suggested that this
statement should refer to testing for AI by serology, antigen
detection, and/or virus isolation, because serology cannot be performed
on dead birds.
We agree with the commenter. Diagnostic surveillance laboratories
in the United States use whatever means are appropriate to test poultry
for AI. This comment does not necessitate a change in the regulations
established by the interim rule.
On the subject of surveillance for AI, the interim rule stated that
Texas established a surveillance program for commercial poultry flocks
near the Mexican border following the Mexican HPAI outbreak in 1994-95.
One commenter suggested deleting the words ``near the Mexican border''
from this statement.
We agree; the program in Texas was Statewide. This comment does not
necessitate a change in the regulations established by the interim
rule.
The interim rule established the new part 146 for table-egg layers,
meat-type chickens, and meat-type turkeys as the NPIP regulations for
commercial poultry. One commenter suggested that we amend the NPIP
regulations for breeding poultry in 9 CFR part 145 to refer to
``commercial breeding flocks'' and ``commercial breeding poultry.''
We have determined that such a change would be inappropriate. The
regulations established by the interim rule use the term ``commercial''
to refer to large-scale operations producing poultry for meat or eggs
for consumption. The commenter apparently intends that the term
``commercial'' be used to refer to any large-scale operation. This
could create confusion, since the poultry regulated in 9 CFR part 146
would not be clearly distinct from the poultry regulated in part 145.
In addition, using the term ``commercial'' to refer to the poultry
covered by 9 CFR part 145 would be inaccurate, as the breeders who
participate in the Plan under subpart E

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of part 145, which covers waterfowl, exhibition poultry, and game bird
breeding flocks and products, typically are hobbyist breeders rather
than large-scale breeders. We are making no changes in response to this
comment.

Auditing

In the regulations established by the interim rule, Sec. 146.11
provides for inspection of participating flocks and slaughter plants.
Paragraph (a) of Sec. 146.11 requires each participating slaughter
plant to be audited at least once annually or a sufficient number of
times each year to satisfy the Official State Agency that the
participating slaughter plant is in compliance with the provisions of 9
CFR part 146.
One commenter stated that this language implies but does not
specifically state that the Official State Agency will both audit and
determine compliance. If we do not envision any potential conflict of
interest and the inference is correct, the commenter recommended
amending the text to clarify. The commenter suggested using the
following text: ``Each participating slaughter plant shall be audited
at least once annually by the head of the Official State Agency or a
sufficient number of times each year to satisfy him/her self that the
participating slaughter plant is in compliance with the provisions of
this part.''
Our intention in Sec. 146.11(a) was to refer to audits of records
of testing, and the results of that testing, that are kept by the
slaughter plant, rather than to any audit of the slaughter plant
facility itself. Audits by the Official State Agency of testing records
should not create any conflict of interest; this process is also used
in the NPIP regulations in 9 CFR part 145.
In a final rule published in the Federal Register on April 1, 2009
(74 FR 14710-14719, Docket No. APHIS-2007-0042), and effective on May
1, 2009, we amended Sec. 146.11 so that it refers specifically to
auditing testing records and provides additional detail about the
auditing process. We believe these changes addressed the commenter's
concerns, and we are making no further changes to the auditing
provisions in Sec. 146.11 in this final rule.

Testing

In the regulations established by the interim rule, Sec. 146.13
sets out requirements for testing Plan flocks for AI. Paragraph (b)(1)
of Sec. 146.13 provides that any samples that are found to be positive
by the agar gel immunodiffusion test must be further tested and
subtyped by Federal Reference Laboratories using the hemagglutination
inhibition test.
One commenter asked that we include a list in the regulations of
laboratories that are Federal Reference Laboratories.
The regulations for testing for AI in breeding poultry, in Sec.
145.14(d), also refer to further testing and subtyping by Federal
Reference Laboratories. Currently, the only Federal Reference
Laboratory for AI is the National Veterinary Services Laboratories
(NVSL) in Ames, IA. In response to this comment, we will post a list of
Federal Reference Laboratories on the NPIP Web site, at (http://www.aphis.usda.gov/animal_health/animal_dis_spec/poultry/index.shtml).

Diagnostic Surveillance Program

In the regulations established by the interim rule, Sec. 146.14
requires all States participating in the Plan for commercial poultry to
develop a diagnostic surveillance program for all poultry, not just
commercial poultry, in that State. The diagnostic surveillance program
is one of the three components that were identified as key to the H5/H7
LPAI program at a meeting APHIS organized with State and industry
representatives that took place in May 2002 in San Antonio, TX.
The exact provisions of the program are at the discretion of the
States, but under the program, AI must be a disease reportable to the
responsible State authority (State veterinarian, etc.) by all licensed
veterinarians. To accomplish this, all laboratories (private, State,
and university laboratories) that perform diagnostic procedures on
poultry must examine all submitted cases of unexplained respiratory
disease, egg production drops, and mortality for AI by both an approved
serological test and an approved antigen detection test.
Memoranda of understanding or other means must be used to establish
testing and reporting criteria (including criteria that provide for
reporting H5 and H7 LPAI directly to the Service) and approved testing
methods. In addition, States should conduct outreach to poultry
producers, especially owners of smaller flocks, regarding the
importance of prompt reporting of clinical symptoms consistent with AI.
One commenter had a specific concern with requiring all
laboratories (private, State, and university laboratories) that perform
diagnostic procedures on poultry to examine all submitted cases of
unexplained respiratory disease, egg production drops, and mortality
for AI by both an approved serological test and an approved antigen
detection test. The commenter stated that this requirement should apply
only to commercial poultry. Such a change is necessary, the commenter
stated, because owner consent is critical for diagnostic laboratories
and, in the commenter's State, laboratories that perform tests must
also charge fees.
It is true that some poultry owners may have to bear the burden of
additional testing costs associated with the diagnostic surveillance
program's testing requirements. Although some States do not impose
charges for such testing, many States do. However, producers smaller
than the size standards established in 9 CFR part 146 are only required
to participate in the diagnostic surveillance program, which means
testing for AI is only required for submitted cases of unexplained
respiratory disease, egg production drops, and mortality.
The diagnostic surveillance program is a key component of the H5/H7
LPAI program because it allows surveillance to reach all sectors of the
poultry industry. In addition, the index case in an outbreak will
likely be detected through the diagnostic surveillance program, since
it focuses on sick poultry. Detecting H5/H7 LPAI quickly will expedite
the response and control or eradication of H5/H7 LPAI before they have
the chance to mutate to highly pathogenic strains of AI. Therefore, it
is crucial to the success of the H5/H7 LPAI program to have the
diagnostic surveillance program apply to all poultry. We are making no
changes to the regulations established by the interim rule in response
to this comment.

Surveillance of Live Bird Markets and Pet Birds

As noted earlier, the voluntary control program established by the
interim rule requires diagnostic surveillance for all poultry in
participating States. It also requires active surveillance for
participating commercial flocks and slaughter plants over certain size
thresholds, but does not include requirements for active surveillance
for other flocks and slaughter plants. In the ``Background'' section of
the interim rule, we briefly discussed the active surveillance that we
carry out in live bird markets, noting that APHIS has entered into
cooperative agreements with States that have live bird market
activities, as well as Official State Agencies and NPIP authorized
laboratories participating in the NPIP LPAI program.
One commenter stated that, while increased surveillance activities
at live bird markets lower the risk of AI transmission, continued
outbreaks of

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the disease indicate that this approach is inadequate. The commenter
encouraged APHIS to take a further step and permanently prohibit the
sale and slaughter of birds at public markets. In the commenter's view,
this action would not only provide for disease control but would
benefit animal welfare, as the commenter stated that animals in these
markets are frequently held and killed in an inhumane manner.
If the sale of live birds at public markets is not to be
prohibited, the commenter recommended that: 1) Surveillance be
increased, 2) housing and welfare conditions be included in the
auditing of markets, and 3) no producers be compensated in any way for
birds killed for disease control purposes at these high-risk venues.
We are confident that the surveillance mechanisms we have developed
in cooperation with States are sufficient to detect any H5/H7 LPAI
present in the markets and to allow us to address the disease
expeditiously. We do not believe it is necessary to prohibit the sale
of poultry at live bird markets where there are appropriate
surveillance mechanisms and related disease safeguards available.
With regard to the commenter's recommendations, we have determined
that current levels of surveillance are adequate to detect outbreaks of
H5/H7 LPAI in live bird markets. While our audits of markets relate
only to the prevention of the introduction or spread of disease, live
bird markets must comply with all laws and regulations applicable to
their operation, including any applicable State animal welfare laws and
regulations; we would report circumstances that we know to be
violations of such laws and regulations to State authorities. Finally,
if a person has complied with all applicable regulations and agreements
pertaining to surveillance and biosecurity for H5/H7 LPAI at a live
bird market, it would be inappropriate to declare that person
ineligible for indemnity, as that person would have incurred costs
eligible for indemnity while complying with the regulations. In
addition, denying indemnity as the commenter suggests would establish a
negative incentive for reporting potential H5/H7 LPAI infection, thus
potentially leading to late reporting of H5/H7 LPAI outbreaks and
hampering our surveillance efforts. We are making no changes in
response to this comment.
This commenter also asked us to regulate the sale of birds in the
retail pet industry. At pet stores, the commenter stated, exotic birds
from many different geographical locations are mixed together and are
often housed in close proximity to domestic fowl in retail pet shops.
The commenter believes there are inadequate licensing, regulatory
oversight, and recordkeeping requirements to track birds sold in pet
shops, and, as a result, APHIS is missing the chance to detect disease
early, and control, if not prevent, its spread.
We expect that, under the regulations in 9 CFR parts 56 and 146,
any outbreaks of H5/H7 LPAI in commercial poultry would be confined to
the premises on which they occur. Our regulations governing the
importation of pet birds in 9 CFR part 93 are sufficient to prevent the
introduction of LPAI via the importation of pet birds. If H5/H7 LPAI
were to spread to pet birds, these birds would be considered infected
with or exposed to H5/H7 LPAI under the regulations in 9 CFR part 56
and thus would be subject to the requirements of the relevant State's
initial response and containment plan for H5/H7 LPAI. These
restrictions on the interstate movement of pet birds are sufficient to
prevent the spread of H5/H7 LPAI.

State H5/H7 Avian Influenza Monitored Classifications

In the regulations established by the interim rule, subparts B
through D of 9 CFR part 146 provide special conditions for
participation in the Plan by commercial table-egg layer flocks,
commercial meat-type chicken slaughter plants, and commercial meat-type
turkey slaughter plants, respectively. Within subparts B and D,
Sec. Sec. 146.24 and 146.44 provide for U.S. H5/H7 Avian Influenza
Monitored State classifications for table-egg layers and meat-type
turkey slaughter plants; there is no U.S. H5/H7 Avian Influenza
Monitored State classification for meat-type chicken slaughter plants
in subpart C.
One commenter stated that it seems incongruous not to have a U.S.
H5/H7 Avian Influenza Monitored State status for meat-type chickens if
it is rational to have such a status for meat-type turkeys.
As we stated in the interim rule, in consultation with our State
and industry cooperators, we have determined that it is not necessary
to provide for a U.S. H5/H7 Avian Influenza Monitored State
classification for meat-type chickens at this time. The regulations for
meat-type chicken slaughter plants provide the same level of
surveillance as occurs at table-egg layer premises and meat-type turkey
slaughter plants, the diagnostic surveillance program required by the
regulations covers all poultry in the State, and the regulations in 9
CFR part 56, including the requirement for an initial State response
and containment plan for H5/H7 LPAI infections, are sufficient to
ensure that H5/H7 LPAI infections in meat-type chickens are handled
appropriately. We will continue to examine the issue, and if we
determine at some point in the future that it is useful to be able to
designate States as U.S. H5/H7 Avian Influenza Monitored, we will
implement such a classification.
In the regulations established by the interim rule, Sec. 56.10(b)
provides that if a State is designated a U.S. Avian Influenza Monitored
State, Layers under Sec. 146.24(a) or a U.S. Avian Influenza Monitored
State, Turkeys under Sec. 146.44(a), it will lose that status during
any outbreak of H5/H7 LPAI and for 90 days after the destruction and
disposal of all infected or exposed birds and cleaning and disinfection
of all affected premises are completed.
One commenter asked us to clarify what is meant by an outbreak, and
specifically whether the discovery of H5/H7 LPAI in a live bird market
would constitute an outbreak that would result in a State losing its
U.S. H5/H7 Avian Influenza Monitored State status.
Consistent with the World Organization on Animal Health (OIE)
guidelines for AI,\2\ we consider any outbreak of H5/H7 LPAI in
domesticated poultry to be an outbreak for the purposes of Sec.
56.10(b). This includes live bird markets. However, as indicated in
Sec. Sec. 146.24(a)(2) and 146.44(a)(2), a State will maintain its
U.S. H5/H7 Avian Influenza Monitored State status after a single
outbreak of H5/H7 LPAI as long as long as the State responds to the
outbreak in accordance with 9 CFR part 56, there are not repeated
outbreaks, and the outbreak does not spread beyond the originating
premises. If any of those circumstances did not occur, APHIS would have
grounds to revoke the State status, although APHIS would have to make a
thorough investigation and give the State an opportunity for a hearing
before doing so.
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\2\ As found in the Terrestrial Animal Health Code. The
guidelines are available on the Internet at (http://www.oie.int/eng/normes/mcode/en_chapitre_1.10.4.htm).
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Definition of H5/H7 LPAI Virus Infection (Infected)

The regulations established by the interim rule in Sec. Sec. 56.1
and 146.1 define H5/H7 LPAI virus infection (infected) by stating that
poultry will be considered to be infected with H5/H7 LPAI for the
purposes of parts 56 and 146 if:
H5/H7 LPAI virus has been isolated and identified as such
from poultry; or
Viral antigen or viral RNA specific to the H5 or H7
subtype of AI virus has been detected in poultry; or

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Antibodies to the H5 or H7 subtype of the AI virus that
are not a consequence of vaccination have been detected in poultry. If
vaccine is used, methods should be used to distinguish vaccinated birds
from birds that are both vaccinated and infected. In the case of
isolated serological positive results, H5/H7 LPAI infection may be
ruled out on the basis of a thorough epidemiological investigation that
does not demonstrate further evidence of H5/H7 LPAI infection.
One commenter expressed concern about the last sentence of this
definition, which discusses using an epidemiological investigation to
determine that no further evidence of H5/H7 LPAI infection exists. The
commenter stated that this statement indicates that certain LPAI events
that leave evidence of prior infection (seropositivity) can be
discounted and may not require any response actions. If this is not the
intent of the definition, the commenter stated, we should remove this
statement from the regulations. If the statement is not removed, the
commenter recommended that comprehensible descriptions of the criteria
that must be met in order to discount serological evidence of infection
be added to the regulations. The commenter also recommended that the
entity responsible for making such determinations be specified.
Our definition in Sec. Sec. 56.1 and 146.1 is based on the
definition provided in the OIE guidelines for AI referred to in this
document. We believe it is appropriate to include the provision that
allows for ruling out H5/H7 LPAI infection on the basis of a thorough
epidemiological investigation. It would be impractical to specify
criteria for ruling out H5/H7 LPAI infection on the basis of a thorough
epidemiological investigation, as the factors allowing us to make such
a determination may vary among outbreaks and among States.
Additionally, the OIE guidelines do not specify criteria for making
such a determination.
We do, however, agree with the commenter that the entity
responsible for making this determination should be specified. We have
amended the definitions of H5/H7 LPAI virus infection (infected) in
Sec. Sec. 56.1 and 146.1 in this final rule to indicate that APHIS is
responsible for making this determination. We believe it will be better
to define the criteria for an epidemiological investigation of isolated
serological results through APHIS communication with the Official State
Agencies and Cooperating State Agencies.
We are making one other change to the definition of H5/H7 LPAI
virus infection (infected) in this final rule. We are adding a sentence
indicating that NVSL makes the final determination that H5/H7 LPAI
virus has been isolated and identified, viral antigen or viral RNA
specific to the H5 or H7 subtype of AI virus has been detected, or
antibodies to the H5 or H7 subtype of AI virus have been detected. This
change is intended to clarify for readers who makes an official
diagnosis related to the H5/H7 LPAI virus infection (infected)
definition.

Official State Agency and Cooperating State Agency Roles in Emergency
Response

The regulations in 9 CFR part 56, which were established by the
interim rule, provide for cooperation among APHIS, Official State
Agencies, and Cooperating State Agencies in response to disease
outbreaks.
The term Official State Agency is defined in Sec. Sec. 146.1 and
56.1 (as well as Sec. 145.1) as the State authority recognized by the
Department to cooperate in the administration of the Plan. The term
Cooperating State Agency is defined in Sec. 56.1 as any State
authority recognized by the Department to cooperate in the
administration of the provisions of 9 CFR part 56. Such cooperation
requires the Cooperating State Agency to have the authority to restrict
intrastate movement, conduct cleaning and disinfection, and quarantine
premises, among other things. The Cooperating State Agency is typically
the State animal health authority.
In some States, the Official State Agency is also the State animal
health authority; in some States, the Official State Agency includes
representation from, but is not identical to, the State animal health
authority. For example, the Official State Agency may include
representatives from the poultry industry and from agricultural
extension universities in addition to representatives from the State
animal health authority. While the expertise of the nongovernmental
participants is invaluable in determining how best to respond to an
LPAI outbreak, only the State animal health authority has the authority
to perform the functions described above in response to an outbreak in
accordance with the provisions of part 56. In addition, the regulations
in 9 CFR part 56 contains provisions that apply to all poultry, not
just the breeding and commercial poultry included in the NPIP programs
administered by the Official State Agencies. For poultry not included
in those programs, we cooperate with the State animal health authority
to eradicate an H5/H7 LPAI outbreak and pay indemnity under part 56.
These circumstances necessitated the additional definition of
``Cooperating State Agency.''
One commenter stated that in several sections of the interim rule
relating to activities described in 9 CFR part 56, the regulations
should reflect and clearly recognize that in some jurisdictions the
Official State Agency is not the responder to or manager of disease
events; rather, the Cooperating State Agency is the entity authorized
by State law to manage animal diseases of regulatory significance such
as AI. Therefore, the commenter stated, disease management actions such
as hold orders, quarantined flock management plans, movement
restrictions on animals, equipment or supplies, and cleaning and
disinfection procedures will be under the direction and control of the
Cooperating State Agency.
In the regulations, functions that are analogous to functions
carried out by the Official State Agency under the Plan regulations in
9 CFR part 145 have been assigned to the Official State Agency in parts
56 and 146. However, in States where the Cooperating State Agency is
different from the Official State Agency, the Cooperating State Agency
is the appropriate entity to take on some specific functions for
disease control, as the commenter suggests.
The commenter suggested several specific places in which a
responsibility or function given to the Official State Agency in the
regulations established by the interim rule should be instead assigned
to the Cooperating State Agency.
Paragraphs Sec. Sec. 146.2(f) and 56.2(c) have stated
that States will be responsible for making the determination to request
Federal assistance in the event of an outbreak of H5/H7 LPAI. (The
``Background'' section of the rule erroneously referred to the Official
State Agency, but the rule text refers only to ``States.'') The
commenter stated that we should clarify that the Cooperating State
Agency, rather than Official State Agency, should make this request for
assistance. We agree, and we are making that change to clarify the
regulations in this final rule. (This change necessitates adding the
definition of Cooperating State Agency to Sec. 146.1.)
Section 56.10 describes the initial State response and
containment plans that must be developed for a State and poultry in
that State to be eligible for 100 percent indemnity for costs related

[[Page 10649]]

to an H5/H7 LPAI outbreak. Paragraph (a) of Sec. 56.10 has stated that
the initial State response and containment plan must be developed by
the Official State Agency and administered by the Cooperating State
Agency of the relevant State. The commenter suggested that the
regulations should require that the plan be developed jointly by the
Official State Agency and the Cooperating State Agency and implemented
by the Cooperating State Agency. The commenter stated that giving the
responsibility of developing the plan solely to the Official State
Agency is undesirable and might become the root of significant
difficulty when the Official State Agency is independent from the
Cooperating State Agency, which would create a situation where one
entity creates the plan without the authority, resources, or
responsibility for executing the plan, after which another agency
executes the plan. The commenter stated that involving the responding
agency in the development of the response plan should be expected to
develop a superior plan to one developed without input from the
responders. We agree, and we have amended Sec. 56.10(a) in this final
rule. That paragraph now states that the initial State response and
containment plan must be developed by the Official State Agency and
further provides that, in states where the Official State Agency is
different than the Cooperating State Agency, the Cooperating State
Agency must also participate in the development of the plan. In
addition, we have corrected references to the initial State response
and containment plan in paragraphs (a)(2) and (a)(3) of Sec. 56.2 that
indicated that the Official State Agency was the sole developer of the
initial State response and containment plan.
The definition of commercial meat-type flock in Sec. Sec.
56.1 and 146.1 allows any group of poultry which is segregated from
another group in a manner sufficient to prevent the transmission of H5/
H7 LPAI and has been so segregated for a period of at least 21 days to
be considered as a separate flock, at the discretion of the Official
State Agency. The commenter stated that this discretion should be given
to the Cooperating State Agency, due to the emergency response
responsibilities of the Cooperating State Agency. We assigned this
responsibility to the Official State Agency because it is a type of
task that the Official State Agency has typically been responsible for
in other NPIP activities, and the definition applies to activities
conducted under the NPIP regulations in 9 CFR part 146 as well as in 9
CFR part 56. We are making no changes in response to this comment.
The regulations established by the interim rule in Sec.
56.1 defined flock plan as: ``A written flock management agreement
developed by APHIS and the Official State Agency with input from the
flock owner and other affected parties. A flock plan sets out the steps
to be taken to eradicate H5/H7 LPAI from a positive flock, or to
prevent introduction of H5/H7 LPAI into another flock. A flock plan
shall include, but is not necessarily limited to, poultry and poultry
product movement and geographically appropriate infected and control/
monitoring zones. Control measures in the flock plan should include
detailed plans for safe handling of conveyances, containers, and other
associated materials that could serve as fomites; disposal of flocks;
cleaning and disinfection; downtime; and repopulation.'' The commenter
stated that the responsibilities discussed in this definition are more
properly assigned to the Cooperating State Agency. Again, we assigned
this responsibility to the Official State Agency because it is a task
that the Official State Agency has typically been responsible for in
NPIP activities. We are making no changes in response to this comment.
The ``Background'' section of the interim rule stated
that, while the provisions of 9 CFR part 146 are APHIS requirements for
participation in the Plan, and protocols for sampling, testing, and
other surveillance activities must be approved by APHIS, the active and
diagnostic surveillance undertaken under part 146 is run by the
Official State Agencies in cooperation with poultry producers; the
costs of the surveillance are borne by the Official State Agencies as
well. The commenter stated that the costs of surveillance are borne by
Cooperating State Agencies rather than Official State Agencies.
However, the commenter is incorrect. The cost of the routine, active
surveillance described in 9 CFR part 146 is, in fact, borne by Official
State Agencies and industry when they cooperate to participate in the
Plan.

Vaccination

In the regulations established by the interim rule, paragraphs
(a)(2) and (b)(2) of Sec. 56.2 set out conditions for the transfer of
vaccine for H5/H7 LPAI to Cooperating State Agencies, provided that the
use of vaccine is included in the initial State response and
containment plan, as described in Sec. 56.10(a)(12).
We received one comment that addressed vaccination in general. The
commenter strongly supported the use of vaccination as an emergency
response for table-egg layer flocks. The commenter recommended that
APHIS undertake outreach efforts to remind States that their initial
State response and containment plans should request authority to use
vaccination in advance, rather than waiting for an outbreak. The
commenter also recommended that APHIS notify States that, if they have
already submitted initial State response and containment plans that did
not include provisions for vaccination, they may amend those plans to
include such provisions.
We agree that vaccination has the potential to be a cost-effective
method of eradicating H5/H7 LPAI, especially for table-egg layer
flocks. Under the regulations, the Official State Agency and
Cooperating State Agency for a State will determine whether vaccination
is part of the State's initial response and containment plan. APHIS
will approve the use of vaccination if the initial State response and
containment plan contains appropriate provisions for its use. We
encourage States to include provisions allowing for the use of
vaccination in their initial State response and containment plans,
especially States in which table-egg layer premises are located. We
also encourage States to submit updated initial State response and
containment plans for APHIS approval if they have new ideas about
effective response to and containment of H5/H7 LPAI in their States.

Payment of Indemnity

In the regulations established by the interim rule, Sec. 56.3 sets
out provisions for payment of indemnity.
One commenter asked generally whether indemnity would be provided
if the H5/H7 LPAI virus entered a flock due to illegal activity on the
part of the flock owners or manager.
In Sec. 56.9, ``Claims not allowed,'' paragraph (c) prohibits the
payment of indemnity for any poultry that become or have become
infected with or exposed to H5/H7 LPAI because of a violation of 9 CFR
part 56. This provision addresses the commenter's concern.
Paragraph (a) of Sec. 56.3 describes the activities for which the
Administrator may pay indemnity. These are:
Destruction and disposal of poultry that were infected
with or exposed to H5/H7 LPAI;
Destruction of any eggs destroyed during testing of
poultry for H5/H7

[[Page 10650]]

LPAI during an outbreak of H5/H7 LPAI; and
Cleaning and disinfection of premises, conveyances, and
materials that came into contact with poultry that were infected with
or exposed to H5/H7 LPAI or, in the case of materials, if the cost of
cleaning and disinfection would exceed the value of the materials or
cleaning and disinfection would be impracticable for any reason, the
destruction and disposal of the materials.
One commenter recommended that APHIS consider indemnifying any
vaccination-related costs that are borne by producers in cases in which
vaccination is used as a response to an outbreak of H5/H7 LPAI. The
commenter cited possible costs including, but not limited to, labor
required both for vaccination and for ongoing surveillance, ultimate
disposal costs, and expenses incurred in controlled marketing, such as
the need to purchase more packaging materials than normal.
The regulations as established by the interim rule cover the cost
of disposal of poultry that were infected with or exposed to H5/H7 LPAI
and have been destroyed. The regulations in Sec. 56.2 provide for
APHIS to transfer payment to the Cooperating State Agency for
administering vaccine and conducting surveillance related to an
outbreak of H5/H7 LPAI. APHIS does not believe it is appropriate to
provide indemnity for business costs such as the packaging costs cited
by the commenter. We are making no changes to the regulations in
response to this comment.
One commenter expressed concern that egg producers in the
commenter's State might not be able to fulfill the testing requirements
necessary to be eligible for 100 percent indemnity.
Under Sec. 56.3(b) of the interim rule, if a table-egg layer
premises has 75,000 or more birds, it must participate in the U.S. H5/
H7 Avian Influenza Monitored program in Sec. 146.23(a) in order for
the poultry on that premises to be eligible for 100 percent indemnity.
Table-egg layers on smaller premises are eligible for 100 percent
indemnity if the State in which the table-egg layers are located
participates in the diagnostic surveillance program as described in
Sec. 146.14, and has an initial State response and containment plan
that is approved by APHIS under Sec. 56.10. The commenter stated
elsewhere that the average commercial layer flock in the commenter's
State ranges from 10,000 to 50,000 table-egg layers per farm. Thus, it
appears that most table-egg layer premises in that State would not have
to participate in the U.S. H5/H7 Avian Influenza Monitored program in
Sec. 146.23(a) in order to be eligible for 100 percent indemnity, as
long as the State has in place a diagnostic surveillance program and an
initial State response and containment plan.
Paragraph (b) of Sec. 56.3 generally provides that establishments
above certain size standards must participate in an NPIP AI
surveillance program in order to be eligible to receive 100 percent
indemnity; otherwise, they are only eligible to receive 25 percent
indemnity. However, in the ``Background'' section of the interim rule,
we asked whether it would be appropriate to provide an indemnity
incentive for owners of smaller poultry flocks to participate in a
State program that has testing requirements equivalent to those in part
146, similar to the incentive we provide for larger flocks to
participate in the programs in part 146. Such an incentive, we stated,
could encourage owners of smaller flocks to participate in the State AI
testing programs designed for those flocks. For example, the
regulations could include provisions for APHIS to recognize the testing
requirements of State active surveillance programs as equivalent to the
testing requirements for the H5/H7 LPAI surveillance programs in part
146. We could then provide that if infected or exposed poultry are
eligible to participate in an equivalent active surveillance program,
but do not participate in that program, we would pay indemnity for less
than 100 percent of costs related to an H5/H7 LPAI outbreak in those
poultry
We invited public comment on:
Whether we should recognize State AI surveillance programs
for smaller poultry flocks or other types of poultry as equivalent to
the NPIP surveillance programs in part 146;
If so, which programs we should recognize; and
What changes in the regulations may be appropriate to
provide poultry owners with an incentive to participate in State AI
surveillance programs.
One commenter, from a State department of agriculture, stated that
its surveillance program would likely be considered equivalent to the
requirements in part 146 and that recognizing equivalent programs for
indemnity purposes would encourage many backyard flocks to participate
in such State surveillance programs. The commenter stated that any
program that encourages bird owners to monitor for AI is valuable not
only for the surveillance information it provides, but also as another
opportunity to educate individuals engaged in backyard and other
alternative production methods about biosecurity and good management
practices.
We appreciate the commenter addressing the issues we raised in the
interim rule. After considering the possible implications of
recognizing State surveillance plans as equivalent for the purposes of
establishing an indemnity incentive, however, we have decided not to do
so in this final rule. While the NPIP active surveillance plans are
appropriate for any flock or slaughter plant that is larger than the
size standards promulgated in the interim rule, it is less clear that
it would be possible to design an active surveillance program that was
appropriate for flocks that are smaller than those same size standards.
Indeed, in practice, State programs for flocks and slaughter plants
smaller than the size standards in the interim rule typically focus on
diagnostic surveillance, such as testing birds that have clinical
symptoms consistent with AI, rather than actively testing a certain
number of birds from each participating flock for AI. Diagnostic
surveillance activities in State surveillance programs are typically in
line with the diagnostic surveillance program required for
participating States under Sec. 146.14.
Rather than establish an indemnity incentive for flocks and
slaughter plants that are smaller than the size standards in part 146
to participate in State surveillance programs, we prefer to conduct
outreach to owners of such flocks and slaughter plants to encourage
them to practice appropriate biosecurity and to promptly report
clinical symptoms consistent with AI. We would also encourage owners of
flocks or slaughter plants that are smaller than the size standards to
participate in any State AI surveillance programs that are available to
them. (As noted earlier, commercial table-egg laying premises with
fewer than 75,000 birds, meat-type chicken slaughter plants that
slaughter fewer than 200,000 meat-type chickens in an operating week,
and meat-type turkey slaughter plants that slaughter fewer than 2
million meat-type turkeys in a 12-month period are not required to
participate in the active surveillance programs in subparts B, C, and D
of 9 CFR part 146 in order to receive 100 percent indemnity.)
We are making changes to paragraph (b)(7) in Sec. 56.3 in this
final rule. This paragraph has stated that poultry will be eligible for
25 percent indemnity if they are associated with a flock or slaughter
plant that participates in the Plan, but they are located in a State
that does not participate in the NPIP diagnostic surveillance program
for H5/H7 LPAI, as described in Sec. 146.14 of this chapter,

[[Page 10651]]

or that does not have an initial State response and containment plan
for H5/H7 LPAI that is approved by APHIS. They may be eligible for 100
percent indemnity, however, if they participate in the Plan with
another State that does participate in the NPIP diagnostic surveillance
program for H5/H7 LPAI, as described in Sec. 146.14 of this chapter,
and has an initial State response and containment plan for H5/H7 LPAI
that is approved by APHIS.
It is important to note that, under Sec. 56.3(b)(7), poultry that
do not participate in the Plan and do not meet the size standards in
paragraphs (b)(4) through (b)(6) of Sec. 56.3 have been eligible for
100 percent indemnity even if the State in which they are located does
not have a diagnostic surveillance program or an initial State response
and containment plan. Since the publication of the interim rule, we
have reviewed this provision and found that its inclusion is
inconsistent with the rationale we gave in the interim rule for
providing for the payment of 100 percent indemnity in certain
circumstances.
In the ``Background'' section of the interim rule, we stated that
providing for the payment of 100 percent of eligible costs is
appropriate because participants in the H5/H7 LPAI control program
established by the interim rule assume an economic burden in complying
with the requirements of the control program. The requirements of the
control program make it more likely that an outbreak of H5/H7 LPAI will
be quickly detected and contained; this would tend to lower the amount
of indemnity APHIS may have to pay, but the cost of participating in
the program is mostly borne by producers and Official State Agencies.
However, States that do not have a diagnostic surveillance program
and an initial State response and containment plan have not assumed the
economic burden of participation in the control program. Because they
have not set up an infrastructure by which producers can participate in
the control program, the producers in those States do not assume costs
related to the control program either, unless they participate in the
Plan with another State that has the required diagnostic surveillance
program and initial State response and containment plan. We did not
intend to provide that producers in States without diagnostic
surveillance programs or without initial State response and containment
plans would be eligible for 100 percent indemnity. Accordingly, we are
amending paragraph (b)(7) in Sec. 56.3 to indicate that the
Administrator is authorized to pay indemnity for only 25 percent of the
costs associated with any infected or exposed poultry located in a
State without a diagnostic surveillance program or an initial State
response and containment plan, unless they participate with another
State as described earlier.
We are also amending Sec. 56.3(b)(7) to refer simply to a
diagnostic surveillance program, rather than a ``National Poultry
Improvement Plan diagnostic surveillance program,'' as the regulations
in Sec. 146.14 require that the diagnostic surveillance program
encompass all poultry, not just NPIP flocks.
Paragraph (c) of Sec. 56.3 states that if the recipient of
indemnity for any of the activities listed in paragraphs (a)(1) through
(a)(3) of Sec. 56.3 also receives payment for any of those activities
from a State or from other sources, the indemnity provided under this
part will be reduced by the total amount of payment received from the
State or other sources.
One commenter stated that some States have producer or government-
funded programs that provide funds to be made available in the case of
an AI infection. Most of these types of programs, the commenter stated,
include a provision requiring the local monies to be returned to the
local source if Federal or other funds are later available to indemnify
the affected parties. The purpose of these local funds is to provide a
much quicker response than possible under the Federal program. The
commenter recommended that the Federal program acknowledge that such
funds exist and provide that the recipients of these funds will not
have their Federal indemnity reduced as long as the local indemnity
funds are ultimately returned to the local source.
We may provide the full indemnity for which the poultry are
eligible to poultry owners who have received indemnity from State or
industry sources, as long as the owner provides us with proof that the
indemnity received from those sources has been returned to its source.
A receipt from the payer of the indemnity that was previously received
would be one such proof. It is not necessary to amend the regulations
to accommodate this process, as if the indemnity funds received have
been returned, the provision in Sec. 56.3(c) no longer applies.

Determination of Indemnity Amounts and Appraisals

In the regulations established by the interim rule, Sec. 56.4
described the process by which indemnity amounts would be determined,
including the appraisal process. We received several comments on the
appraisal process.
One commenter stated that a complicated appraisal process should
never be allowed to interfere with the prompt eradication of disease.
As the regulations are written, the commenter stated, no depopulation
could occur until the official appraiser has completed the paperwork
and signed off on the appropriate form with the owners' and mortgagees'
(if necessary) signatures. However, the commenter stated, in reality
there are very few USDA appraisers; if the State's appraisal system is
not permitted to be used, then actions to control the H5/H7 LPAI
outbreak could be delayed. The commenter noted that this could have a
negative effect on poultry production in the entire State in which the
outbreak occurred, as the 90 days that must elapse before U.S. Avian
Influenza Monitored State status can be restored does not begin until
the birds are depopulated and the premises are cleaned and disinfected.
The commenter had two suggestions for how to address the problem.
One was to have pre-approved State and Federal appraisers in every
State. Another suggestion was to have a prescribed list of information
that must be collected concerning each flock prior to depopulation
which the USDA appraiser could use after the fact to calculate an exact
dollar amount.
We appreciate the commenter's concerns and share a desire to ensure
that the appraisal process does not hinder response efforts for a
disease outbreak. The regulations established by the interim rule in
Sec. 56.4(a) and (b) include statements that appraisals of poultry or
eggs must be signed by the owners of the poultry prior to the
destruction of the poultry or eggs, unless the owners, APHIS, and the
Cooperating State Agency agree that the poultry may be destroyed
immediately. (The interim rule neglected to include a similar statement
in Sec. 56.4(c)(2) regarding the appraisal process for materials for
which the cost of cleaning and disinfection would exceed the value of
the materials or cleaning and disinfection would be impracticable for
any reason. We are correcting that omission in this final rule.) We
believe this provision addresses the commenter's concern.
We agree that having a list of pre-approved appraisers would be
useful, and we are working to develop one to improve our response
efforts for all diseases, not just H5/H7 LPAI.
With regard to the commenter's second suggestion, we typically
conduct appraisals for poultry by reviewing

[[Page 10652]]

documentation regarding their production, rather than by visual
inspection. The appraisal estimate is based on the cost of inputs used
during the production process (e.g., feed, shelter, labor) and the
current market price of the relevant poultry or outputs. A more
detailed discussion can be found in the full economic analysis that
accompanied the interim rule, which is available on Regulations.gov
(see footnote 1 in this document for a link to the economic analysis on
Regulations.gov).
One commenter stated that if a flock owner voluntarily destroys a
flock prior to confirmation of infection, there should be a means for a
Cooperating State Agency to verify the number and type of poultry and
eggs destroyed, so that indemnity may be paid after the infection has
been confirmed and an appraisal made.
Only poultry that have been infected with or exposed to H5/H7 LPAI
are eligible for indemnity under 9 CFR part 56. Under the definition of
H5/H7 LPAI exposed, poultry can be determined to be exposed to H5/H7
LPAI if there is a reason to believe that association has occurred with
H5/H7 LPAI or vectors of the virus by the Cooperating State Agency and
confirmed by APHIS. Absent our determination that poultry were infected
with or exposed to H5/H7 LPAI, we will not authorize the payment of
indemnity for the destruction and disposal of that poultry.
As noted earlier, for poultry that are infected with or exposed to
H5/H7 LPAI, we will use records of production to determine how much
indemnity should be paid.
In Sec. 56.4, paragraph (a)(1) states that, for laying hens, the
appraised value should include the hen's projected future egg
production. One commenter agreed with this provision but recommended
that the appraisal should also take into account whether the hen would
have undergone a molt had she not been euthanized. The commenter stated
that not all flocks are molted, but those that are have a longer
productive life -- typically 110-115 weeks rather than approximately 80
weeks.
The commenter is correct that molted hens have a longer productive
life than hens that are not molted. However, there would be
considerable difficulties in determining whether a hen would have been
molted and properly valuing the hen based on that information.
Based on industry figures for hen values, the appraised value of a
hen starts out low for a day-old chick, increases as the bird grows,
and reaches a maximum soon after egg laying begins. As eggs are laid,
the hen's value declines. When molting takes place, the hen's value
increases during the molting phase, followed by a decline in value as
eggs are laid. The process repeats itself for a second molt.
If we were to adopt the commenter's recommendation, our appraisal
model would not increase the value of a hen in its molting phase, but
would have to assign that increase in value to the initial lay. This
would result in no increase in value for hens in the molting phase,
which would mean that our appraisal values of a hen in the molting
phase would not reflect the fair market value of the hen. In addition,
if we made the change suggested by the commenter, we would have to take
the owner's word for whether the hen was to be molted, meaning the
owner would have a strong incentive to state that the hen would be
molted, thus increasing the hen's value, regardless of the actual plans
for molting. We have determined that our present valuation model for
hens more accurately determines their fair market value, as required by
the Animal Health Protection Act. We are making no changes in response
to this comment.
In Sec. 56.4, paragraph (a)(2) sets out the conditions for
determining the amount of indemnity paid for disposal of poultry. The
conditions include a requirement that any disposal of poultry infected
with or exposed to H5/H7 LPAI for which indemnity is requested must be
performed under a compliance agreement between the claimant, the
Cooperating State Agency, and APHIS.\3\ Paragraph (c)(1) sets out the
conditions under which the amount of indemnity paid for cleaning and
disinfection will be determined; similarly, the conditions include a
requirement that any cleaning and disinfection of premises,
conveyances, and materials for which indemnity is requested must be
performed under a compliance agreement between the claimant, the
Cooperating State Agency, and APHIS.
---------------------------------------------------------------------------

\3\ Two sentences in Sec. 56.4(a)(2) as it was established by
the interim rule incorrectly referred to ``compensation'' rather
than ``indemnity.'' We are correcting the error in this final rule.
---------------------------------------------------------------------------

One commenter stated that requiring that completed, signed
appraisal documents and a written compliance agreement be in place
prior to disposal of infected poultry would severely hamper efforts to
quickly and effectively deal with the infection. The commenter
recommended that we recognize as adequate any disposal activities
undertaken under the approved initial State response and containment
plan. The commenter also stated that cleaning and disinfection should
be allowed to commence without a compliance agreement as long as a
Cooperating State Agency oversees and directs the work and
documentation of expenses is provided. In the event of a disputed
claim, the commenter stated, a process for resolving differences should
be provided.
The regulations require that the destruction and disposal of the
indemnified poultry be conducted in accordance with the initial State
response and containment plan for H5/H7 LPAI. Similarly, the
regulations indicate that APHIS will review claims for indemnity for
cleaning and disinfection to ensure that all expenditures relate
directly to activities described in Sec. 56.5 and in the initial State
response and containment plan described in Sec. 56.10.
Allowing disposal of infected poultry or cleaning and disinfection
to begin without a compliance agreement in place, but promising to pay
indemnity for expenses related to these activities, would amount to
approving expenditures on APHIS' behalf without having a mechanism in
place by which APHIS can provide oversight. This could create disputes
regarding the payment of indemnity. Our oversight of activities for
which we pay indemnity is essential to the responsible use of funds
made available to APHIS for indemnity.
Based on previous disease response efforts, including the effort to
eradicate exotic Newcastle disease outbreaks in 2002-2003, we are
confident that we can conclude compliance agreements with States and
flock owners with sufficient timeliness to ensure an effective disease
response.
One commenter had two comments about how the provisions in Sec.
56.9, ``Claims not allowed,'' relate to the provisions in Sec. 56.4.
Paragraph (a) of Sec. 56.9 states that the USDA will not allow
claims arising out of the destruction of poultry unless the poultry
have been appraised as prescribed in part 56 and the owners have signed
the appraisal form indicating agreement with the appraisal amount as
required by Sec. 56.4(a)(1). The commenter asked whether the poultry
could be appraised after they are destroyed based on the information
collected by the Cooperating State Agency prior to their destruction.
We expect to use a process in which birds are destroyed and
appraisal is performed after destruction in some cases, regardless of
whether the Cooperating State Agency or APHIS collects the necessary
information for the appraisal. This is why the regulations in Sec.
56.4(a)(1) provide that poultry may be destroyed before the owners of
the poultry sign their

[[Page 10653]]

appraisals if the owners, APHIS, and the Cooperating State Agency agree
that the poultry may be destroyed immediately.
Paragraph (b) of Sec. 56.9 states that the USDA will not allow
claims arising out of the destruction of poultry unless the owners have
signed a written agreement with APHIS in which they agree that if they
maintain poultry in the future on the premises used for poultry for
which indemnity is paid, they will maintain the poultry in accordance
with a plan set forth by the Cooperating State Agency and will not
introduce poultry onto the premises until after the date specified by
the Cooperating State Agency.
The commenter stated that this requirement was inconsistent with
the provisions in Sec. 56.4 that require a compliance agreement to be
in place for the disposal of poultry and for cleaning and disinfection,
and that both paragraphs should simply require an agreement rather than
a compliance agreement.
The two requirements refer to two different agreements. The
requirement in Sec. 56.9(b) refers to an agreement for maintenance and
repopulation of the flock, while the requirements in Sec. 56.4 refer
to a compliance agreement under which APHIS will pay for cleaning and
disinfection work that APHIS does not perform. As stated earlier, we
are confident that we can conclude the necessary compliance agreements
promptly under disease emergency conditions, based on past experience.

Destruction and Disposal of Poultry and Cleaning and Disinfection of
Premises, Conveyances, and Materials

In the regulations established by the interim rule, Sec. 56.5 sets
out provisions relating to the destruction and disposal of poultry and
cleaning and disinfection of premises, conveyances, and materials.
Paragraph (a) of Sec. 56.5 sets out the factors on which the
Cooperating State Agency and APHIS will base their selection of a
method of destruction for poultry. These factors include:
The species, size, and number of the poultry to be
destroyed;
The environment in which the poultry are maintained;
The risk to human health or safety of the method used;
Whether the method requires specialized equipment or
training;
The risk that the method poses of spreading the H5/H7 LPAI
virus;
Any hazard the method could pose to the environment;
The degree of bird control and restraint required to
administer the destruction method; and
The speed with which destruction must be conducted.
Three commenters stated that the welfare of the poultry to be
destroyed should be a consideration in our selection of methods for the
destruction of poultry. Two note that the OIE has recently published
animal welfare guidelines that recommend that, when ``animals are
killed for disease control purposes, methods used should result in
immediate death or immediate loss of consciousness lasting until death;
when loss of consciousness is not immediate, induction of
unconsciousness should be non-aversive and should not cause anxiety,
pain, distress or suffering in the animals.'' These commenters
recommended that we adopt the OIE guidelines on this issue in the
regulations.
One of these commenters stated that the USDA has made efforts to
include animal welfare issues in its highly pathogenic avian influenza
(HPAI) response plan, including permitting only methods approved by the
American Veterinary Medical Association and holding discussions with
scientists and animal protection organizations to consider the
suffering inflicted by various destruction methods. The commenter
expressed surprise that we did not address these issues in the same
manner in the LPAI regulations, especially since unlike HPAI, which has
not struck the United States in many years, LPAI outbreaks are
regularly detected, and each outbreak typically requires the
destruction of entire flocks of birds, which can number in the tens of
thousands. The commenter stated that the sheer magnitude of the number
of animals involved makes it ethically incumbent upon responsible
authorities to minimize their suffering.
The commenters also made recommendations regarding destruction
methods that could minimize the pain and suffering of the destroyed
poultry. One commenter attached a paper addressing the topic. Another
recommended the use of inert gases, particularly in cases where sheds
cannot be sealed properly (for example, with table-egg layers or
breeding poultry), discussed conditions that should apply to the use of
carbon dioxide, and recommended that other methods not be used. A third
commenter agreed on the suitability of inert gases and specifically
recommended that we not use foam to destroy poultry.
We agree with the commenters that it is appropriate to take the
humaneness of a destruction method into account when determining what
destruction method to use. Accordingly, this final rule adds
``Consistency of the method with humane euthanasia guidelines'' as an
additional factor to be considered when selecting the destruction
method in Sec. 56.5(a).
We appreciate the information the commenters supplied on specific
destruction methods, and we will take it into consideration when
determining what destruction method to use during an LPAI outbreak.
Paragraph (c) of Sec. 56.5 sets out conditions under which
controlled marketing may occur. The interstate movement of poultry that
has been infected with or exposed to H5/H7 LPAI for controlled
marketing may occur only at the discretion of the Cooperating State
Agency and APHIS and only if the initial State response and containment
plan described in Sec. 56.10 provides for it. In addition, controlled
marketing may only occur in accordance with the following requirements:
Poultry infected with or exposed to H5/H7 LPAI must not be
transported to a market for controlled marketing until 21 days after
the acute phase of the infection has concluded, as determined by the
Cooperating State Agency in accordance with the initial State response
and containment plan described in Sec. 56.10; and
Within 7 days prior to slaughter, each flock to be moved
for controlled marketing must be tested for H5/H7 LPAI using a test
approved by the Cooperating State Agency and found to be free of the
virus.
These restrictions ensure that poultry that are moved for
controlled marketing do not pose a risk of spreading H5/H7 LPAI.
One commenter asked whether the requirements in this paragraph
refer only to poultry flocks that participate in the Plan or to any
poultry. Specifically, the commenter asked whether a State could allow
poultry from an H5/H7 LPAI positive live bird market to be sold for
several days prior to depopulation and cleaning and disinfection, a
process known as ``selldown.''
Poultry that have been moved to a live bird market for sale have
already reached the end of the marketing cycle, and thus would not need
to be moved for controlled marketing; they are already at a market and
being sold directly to consumers. Therefore, the controlled marketing
requirements do not apply to the sale of poultry at live bird markets.
However, the movement of these infected or exposed birds would be
restricted under the initial State response and containment plan.
Paragraph (c)(2) of Sec. 56.5 indicates that poultry moved for
controlled marketing will not be eligible for

[[Page 10654]]

indemnity under Sec. 56.3. Since the publication of the interim rule,
outbreaks of H5/H7 LPAI have occurred in which producers sold infected
or exposed birds through controlled marketing. Indemnity was not paid
for the poultry themselves, but the regulations were unclear on whether
we would pay indemnity for costs related to cleaning and disinfection
of premises, conveyances, and materials that came into contact with
poultry that are moved for controlled marketing.
Although producers who move infected or exposed poultry interstate
for controlled marketing are able to recoup the cost of production of
the poultry through their sale, they still incur costs relating to
cleaning and disinfection, which after an H5/H7 LPAI outbreak must be
more thorough than typical cleaning and disinfection. Therefore, in
this final rule, we are adding a provision to this paragraph indicating
that costs related to cleaning and disinfection of premises,
conveyances, and materials that came into contact with poultry that are
moved for controlled marketing will be eligible for indemnity. This
provision is intended to provide additional clarity.
Paragraph (d) in Sec. 56.5 sets out guidelines for the development
of a cleaning and disinfection plan for a premises and for the
materials and conveyances on that premises. Cleaning and disinfection
must be performed in accordance with the initial State response and
containment plan described in Sec. 56.10, which must be approved by
APHIS. One commenter had several comments on paragraph (d).
Paragraph (d)(1)(i) of Sec. 56.5 provides guidance to secure and
remove all feathers that might blow around outside the house in which
the infected or exposed poultry were held by raking them together and
burning the pile.
The commenter stated that this action may be in violation of
applicable environmental regulations.
In response to this comment, we are including a general statement
at the beginning of paragraph (d) that indicates that all cleaning and
disinfection activities must comply with Federal, State, and local
environmental regulations.
It is important to note that paragraph (d) is intended to provide
guidelines for the development of a cleaning and disinfection plan; if
some aspect of the guidelines in paragraph (d) is not applicable to a
specific State or locality, or to the poultry operations affected by an
LPAI outbreak, a State has the option to address cleaning and
disinfection differently in its initial State response and containment
plan.
The commenter also noted that there is no alternate feather
disposal option presented, e.g., composting, burial in approved
locations, onsite treatment, or secure transport to offsite landfill or
treatment.
As stated in the regulations, paragraph (d) of Sec. 56.5 provides
guidelines for the development of a cleaning and disinfection plan for
a premises and for the materials and conveyances on that premises. The
feather disposal method provided in the regulations is not the only
possible effective method, and other methods may be appropriate in
certain situations. In the event of an H5/H7 LPAI outbreak, APHIS
reserves the option to approve another disposal method if a State
requests it and we determine the disposal method to be effective. It is
not necessary to set out all potentially appropriate feather disposal
methods in the guidelines in paragraph (d).
Paragraph (d)(1)(iii) of Sec. 56.5 provides guidance to close the
house (except for allowing enough ventilation to remove moisture) for a
minimum of 21 days following application of insecticides and
rodenticides to allow as much H5/H7 LPAI virus as possible to die a
natural death. The commenter stated that there is no mention made of
concurrent in-house composting or whether there is initial raising of
the in-house temperature and that allowing the house sit for 21 days in
a cold, moist environment may do little to reduce the LPAI virus titer
in the house.
We had intended for composting to be performed during the 21-day
period after the closing of the poultry house. We have amended
paragraph (d)(1)(iii) to reflect that. We are also amending paragraph
(d)(1)(iii) to indicate that the house should be heated to 100 [deg]F
before beginning in-house composting.
Paragraph (d)(1)(iv) of Sec. 56.5 provides guidance to heat the
house to 100 [deg]F for 72 hours prior to cleaning and disinfection.
The commenter stated that it appears that this temperature raising
occurs after the 21-day downtime and prior to litter removal or in-
house composting. It is unclear, the commenter stated, whether this
temperature recommendation is based on acceptable field test data
specific for the LPAI virus. If raising the temperature occurs prior to
removal or composting of litter, the litter might act as a blanket to
protect the virus from the heat. The commenter stated that raising the
temperature to the indicated level at the start of composting rather
than at the end will accelerate the in-house composting process and
will aid in the natural die-off of the LPAI virus in the poultry house
during the 21-day downtime.
These comments are addressed by the change discussed previously.
The commenter also stated that there is no guidance provided as to
how to deal with a house with open sides in a cold environment.
The guidelines in paragraph (d) are intended to address the most
common situations associated with commercial poultry production. Houses
with open sides are typically not used in commercial poultry
production, as open sides put the poultry within at risk of infection
by wild birds. In the event of an H5/H7 LPAI outbreak, APHIS reserves
the option to approve another composting method if a State requests it
and we determine the disposal method to be effective; a composting
method approved in this manner would also be an approved activity for
indemnity payment purposes, as would any other cleaning and
disinfection provision used to deal with an unusual situation. It is
not necessary to set out all potentially appropriate composting methods
in the guidelines in paragraph (d).
Paragraph (d)(2)(i) of Sec. 56.5 provides guidance to clean up or
compost all manure, debris, and feed in the house if possible before
cleaning and disinfection. The commenter stated that it is not clear
whether this composting should occur at the start of the 21-day pre-
cleaning and disinfection period.
Under these guidelines, all material in the house would be
composted during the 21-day pre-cleaning and disinfection period, after
which any manure, debris, and feed would undergo an additional
composting.
Paragraph (d)(2)(i) also indicates that equipment should be washed
and disinfected. The commenter stated that the regulations should more
appropriately provide guidance to clean and disinfect equipment.
We agree, and we have made this change in the final rule.
Paragraph (d)(2)(ii) of Sec. 56.5 provides guidance to spray
contaminated surfaces with soap and water. The commenter stated that it
may have been more appropriate to indicate instead spraying with
detergent (rather than soap) and water. Also, the commenter stated, the
guidance should indicate that detergent should be rinsed with fresh
water to prevent a potentially negative interaction between the
detergent and the successively applied disinfectant.
We agree with the commenter, and we have made the suggested
changes.
Paragraph (d)(2)(iii) of Sec. 56.5 provides guidance to use
disinfectants authorized by 9 CFR 71.10(a). The commenter

[[Page 10655]]

stated that this reference to 9 CFR 71.10(a) may be inappropriate as
cresylic disinfectants, liquefied phenol, chlorinated lime, and sodium
hydroxide are not present as active ingredients on the labels of any
current registered AI virus disinfectant, nor is there any exemption
present to use Environmental Protection Agency (EPA)-registered
tuberculocidal disinfectants against AI virus. The commenter stated
further that there is no recommendation to use any of the approximately
100 EPA-registered AI virus disinfectants as per label instructions or
a disinfectant approved by the EPA for use under a Federal Insecticide,
Rodenticide, and Fungicide Act (FIFRA) section 18 exemption.
We agree with the commenter, and we have amended the regulations to
refer to a disinfectant registered with the EPA for AI virus per label
instructions or a disinfectant approved by the EPA for use under a
FIFRA section 18 exemption, instead of referring to a disinfectant
authorized by Sec. 71.10(a).
The commenter also stated that there is no guidance on how to
disinfect surfaces that are prevalent in poultry houses but are not
considered as nonporous, e.g., cement, concrete, wood, clay, etc., as
there are no EPA-registered disinfectants and there is no authorization
from EPA to treat surfaces that are not considered nonporous with
disinfectant.
We would not use a disinfectant on any surface on which its use is
not authorized by its EPA label. We have added text to paragraph
(d)(2)(iii) of Sec. 56.5 to clarify this issue. Given the diversity of
construction in commercial poultry houses, disinfection of surfaces
considered to be nonporous will need to be addressed in each individual
State's initial State response and containment plan, rather than in the
guidelines in paragraph (d).

Conditions For Payment to Contractors

In the regulations established by the interim rule, Sec. 56.8
provides that when poultry or eggs have been destroyed pursuant to part
56, the Administrator may pay claims to any party with which the owner
of the poultry or eggs has entered into a contract for the growing or
care of the poultry or eggs. Section 56.8 also sets out a formula for
calculating the proportion of indemnity paid to the owner of poultry or
eggs destroyed under part 56 that may be paid to the contract grower:
The value of the contract the owner of the poultry or eggs
entered into with another party for the growing or care of the poultry
or eggs in dollars is divided by the duration of the contract as it was
signed prior to the H5/H7 LPAI outbreak in days.
This figure is multiplied by the time in days between the
date the other party began to provide services relating to the
destroyed poultry or eggs under the contract and the date the birds
were destroyed due to H5/H7 LPAI.
If compensation is paid to a grower under Sec. 56.8, the owner of
the poultry or eggs will be eligible to receive the difference between
the indemnity paid to the growers and the total amount of indemnity
that may be paid for the poultry or eggs.
These regulations work well for the contract grower model prevalent
in the meat-type poultry industry, where contract growers are typically
paid on delivery of the poultry and in which the poultry increase in
value over time until they are ready for sale in the market. However,
since the publication of the interim rule, we reviewed these provisions
and found that they are less suitable for contract growers maintaining
egg-laying birds (table-egg layers and breeding poultry). Such growers
are typically compensated at set intervals during the contract (either
weekly or monthly). Under the regulations as established by the interim
rule, growers could receive payment for their labor both from the owner
and from APHIS if poultry in their care were destroyed due to infection
with or exposure to H5/H7 LPAI after growers had already received a
payment from the poultry owner.
Therefore, in this final rule, we are adding a provision to the
regulations in Sec. 56.8 indicating that if a contract grower
receiving indemnity under Sec. 56.8 has received any payment under his
or her contract from the owner of the poultry at the time the poultry
are destroyed, the amount of indemnity for which the contract grower is
eligible will be reduced by the amount of the payment the contract
grower has already received.

Miscellaneous Changes

The interim rule stated that the information collection and
recordkeeping requirements included in the interim rule had been
submitted for emergency approval to the Office of Management and Budget
(OMB). Since the publication of the interim rule, we received approval
for those information collection and recordkeeping requirements, as
well as a paperwork control number for those requirements. The OMB
control number for the information collection associated with this rule
is 0579-0007. In this final rule, we are adding the paperwork control
number to the sections of the regulations established by the interim
rule that contain information collection and recordkeeping
requirements. These sections are Sec. Sec. 56.4, 56.6, 56.7, 56.9,
146.4, 146.11, 146.13, 146.14, 146.24, and 146.44.
We are also making minor, nonsubstantive corrections and changes.
Therefore, for the reasons given in the interim rule and in this
document, we are adopting the interim rule as a final rule, with the
changes discussed in this document.
This final rule also affirms the information contained in the
interim rule concerning Executive Order 12372.

Effective Date

Pursuant to the administrative procedure provisions in 5 U.S.C.
553, we find good cause for making this rule effective less than 30
days after publication in the Federal Register. The interim rule
adopted as final by this rule became effective on September 26, 2006.
This rule amends the interim rule to provide that the amount of
indemnity for which contract growers are eligible will be reduced by
any payment they have already received on their contracts when poultry
in their care are destroyed, to clarify the roles of cooperating State
agencies with respect to H5/H7 low pathogenic avian influenza
outbreaks, to provide that the welfare of poultry to be destroyed will
be considered when selecting a method for the destruction of poultry,
and to provide additional guidance for cleaning and disinfecting an
affected premises in the interim rule. Immediate action is necessary to
make these changes in order to help ensure that the H5/H7 subtypes of
low pathogenic avian influenza are detected and eradicated when they
occur within the United States. Therefore, the Administrator of the
Animal and Plant Health Inspection Service has determined that this
rule should be effective upon publication in the Federal Register.

Executive Order 12866 and Regulatory Flexibility Act

This final rule has been determined to be significant for the
purposes of Executive Order 12866 and, therefore, has been reviewed by
the Office of Management and Budget.
In accordance with 5 U.S.C. 604, we have performed a final
regulatory flexibility analysis, which is summarized below, regarding
the economic effects of this rule on small entities. Copies of the full
analysis are available on the Regulations.gov Web site (see footnote 1
in this document for a link to Regulations.gov) or by

[[Page 10656]]

contacting the person listed under FOR FURTHER INFORMATION CONTACT.
Under the interim rule, the USDA established a voluntary control
program for H5/H7 LPAI. As part of the program, participating owners
and growers are indemnified for losses arising from depopulation of
birds affected with H5/H7 LPAI.
In general, benefits of containing the spread of a livestock or
poultry disease fall into three categories: 1) Avoided producer losses
from disease morbidity and mortality; 2) avoided consumer losses due to
price increases resulting from decreased supplies (net of avoided gains
to producers attributable to the price increases); and 3) avoided
reduced demand if markets are closed to affected commodities. LPAI is
rarely fatal to infected birds. However, the longer an outbreak is not
controlled, with more birds becoming infected with H5/H7 LPAI, the more
likely it is that the virus may mutate into a highly pathogenic form.
The more timely and well-planned the response to an LPAI occurrence,
the less likely it will result in harmful price and trade effects. This
final rule has the objectives of reducing the risk of H5/H7 LPAI
outbreaks and improving responsiveness and eradication measures at the
grower, industry, and State levels when the disease does occur.
The groups who enjoy the primary benefit of a disease eradication
campaign are consumers and those owners/growers whose flocks have
remained healthy. Owners and growers of the depopulated flocks bear the
primary burden of an eradication effort, if not indemnified. In
addition to the value of lost production, the owners/growers of
affected birds may also bear costs of cleanup, disinfection,
transportation, forgone income, and other financial hardships. The
benefits of a voluntary avian influenza control program derive from
disease prevention and from cost minimization when an outbreak does
occur. Evidence of the types of benefits gained from control of avian
influenza is found in a USDA-Economic Research Service study of a 1983-
84 outbreak.\4\ A 2002 outbreak in Virginia also exemplifies the types
of costs incurred due to an avian influenza incident. While these
occurrences show that the costs of an avian influenza outbreak can be
substantial, recent outbreaks have typically been smaller in scale. An
ongoing surveillance program contributes to our ability to detect
outbreaks early and limit their effects.
---------------------------------------------------------------------------

\4\ Lasley, F. A., Short, S. D., and Henson, W. L. 1985.
Economic Assessment of the 1983-84 Avian Influenza Eradication
Program. USDA, ERS, National Economics Division.
---------------------------------------------------------------------------

To the extent that the final rule contributes to the elimination of
AI, all affected entities should benefit over the long term. The
program that APHIS is establishing is a voluntary program; producers
are not required to participate. The benefits of this rule, from
preventing LPAI outbreaks and minimizing losses should an outbreak
occur, are expected to exceed costs to producers and States of
participating in the program's disease prevention efforts.
Under the rule, producers will be required to keep flocks and
facilities clean, slaughter plants will be required to conduct
sampling, and States will be required to conduct annual inspections and
develop response and containment plans. APHIS will provide full
indemnities for specific costs to participating producers and States
should an outbreak occur.
The final rule explicitly provides indemnity for cleaning and
disinfection in the case of birds moved for controlled marketing. Since
the interim rule was implemented, APHIS has paid these costs on a few
occasions. These costs vary widely. The variations may be attributed to
factors such as the type of production, where the operation is located,
the size of the operation, the company involved in the cleaning and
disinfection, as well as other factors.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Has no retroactive effect; and (2)
does not require administrative proceedings before parties may file
suit in court challenging this rule.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in the interim rule have been approved by the Office of
Management and Budget (OMB) under OMB control number 0579-0007.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the Internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 851-2908.

List of Subjects

9 CFR Part 56

Animal diseases, Indemnity payments, Low pathogenic avian
influenza, Poultry.

9 CFR Part 146

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

0
Accordingly, the interim rule amending 9 CFR parts 53, 56, 145, 146,
and 147 that was published at 71 FR 53601-56333 on September 26, 2006,
is adopted as a final rule with the following changes:

PART 56--CONTROL OF H5/H7 LOW PATHOGENIC AVIAN INFLUENZA

0
1. The authority citation for part 56 continues to read as follows:

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

0
2. Section 56.1 is amended by revising the definition of H5/H7 LPAI
virus infection (infected) to read as follows:

Sec. 56.1 Definitions.

* * * * *
H5/H7 LPAI virus infection (infected). (1) Poultry will be
considered to be infected with H5/H7 LPAI for the purposes of this part
if:
(i) H5/H7 LPAI virus has been isolated and identified as such from
poultry; or
(ii) Viral antigen or viral RNA specific to the H5 or H7 subtype of
AI virus has been detected in poultry; or
(iii) Antibodies to the H5 or H7 subtype of the AI virus that are
not a consequence of vaccination have been detected in poultry. If
vaccine is used, methods should be used to distinguish vaccinated birds
from birds that are both vaccinated and infected. In the case of
isolated serological positive results, H5/H7 LPAI infection may be
ruled out on the basis of a thorough epidemiological investigation that
does not demonstrate further evidence of H5/H7 LPAI infection, as
determined by APHIS.
(2) The official determination that H5/H7 LPAI virus has been
isolated and identified, viral antigen or viral RNA specific to the H5
or H7 subtype of AI virus has been detected, or antibodies to the H5 or
H7 subtype of AI virus have been detected may only be made by the
National Veterinary Services Laboratories.
* * * * *

Sec. 56.2 [Amended]

0
3. Section 56.2 is amended as follows:

[[Page 10657]]

0
a. In paragraphs (a)(2) and (a)(3), by removing the words ``developed
by the Official State Agency and'' each time they occur.
0
b. In paragraph (a)(3), by adding a period at the end of the paragraph.
0
c. In paragraph (c), by removing the word ``States'' and adding the
words ``Cooperating State Agencies'' in its place.

0
4. Section 56.3 is amended by revising paragraph (b)(7) to read as
follows:

Sec. 56.3 Payment of indemnity.

* * * * *
(b) * * *
(7) The poultry are located in a State that does not participate in
the diagnostic surveillance program for H5/H7 LPAI, as described in
Sec. 146.14 of this chapter, or that does not have an initial State
response and containment plan for H5/H7 LPAI that is approved by APHIS
under Sec. 56.10, unless such poultry participate in the Plan with
another State that does participate in the diagnostic surveillance
program for H5/H7 LPAI, as described in Sec. 146.14 of this chapter,
and has an initial State response and containment plan for H5/H7 LPAI
that is approved by APHIS under Sec. 56.10.
* * * * *

0
5. Section 56.4 is amended as follows:
0
a. In paragraph (a)(2), in the second and third sentences, by removing
the word ``compensation'' and adding the word ``indemnity'' in its
place.
0
b. In paragraph (c)(2), by adding two new sentences after the third
sentence to read as set forth below.
0
c. By adding the OMB citation ``(Approved by the Office of Management
and Budget under control number 0579-0007)'' at the end of the section.

Sec. 56.4 Determination of indemnity amounts.

* * * * *
(c) * * *
(2) * * *Appraisals of materials must be reported on forms
furnished by APHIS and signed by the appraisers and must be signed by
the owners of the materials to indicate agreement with the appraisal
amount. Appraisals of materials must be signed prior to the destruction
of the materials, unless the owners, APHIS, and the Cooperating State
Agency agree that the materials may be destroyed immediately. * * *

0
6. Section 56.5 is amended as follows:
0
a. In paragraph (a)(7), by removing the word ``and'' at the end of the
paragraph.
0
b. In paragraph (a)(8), by removing the period and adding the word ``;
and'' in its place.
0
c. By adding a new paragraph (a)(9) to read as set forth below.
0
d. By revising paragraph (c)(2) to read as set forth below.
0
e. In the introductory text of paragraph (d), by adding a new sentence
before the last sentence to read as set forth below.
0
f. By revising paragraphs (d)(1)(iii), (d)(2)(ii), and (d)(2)(iii) to
read as set forth below.
0
g. In paragraph (d)(2)(i), by removing the word ``washed'' each time it
occurs and adding the word ``cleaned'' in its place.

Sec. 56.5 Destruction and disposal of poultry and cleaning and
disinfection of premises, conveyances, and materials.

(a) * * *
(9) Consistency of the method with humane euthanasia guidelines.
* * * * *
(c) * * *
(2) Poultry moved for controlled marketing will not be eligible for
indemnity under Sec. 56.3. However, any costs related to cleaning and
disinfection of premises, conveyances, and materials that came into
contact with poultry that are moved for controlled marketing will be
eligible for indemnity under Sec. 56.3.
(d) * * *Cleaning and disinfection must also be performed in
accordance with any applicable State and local environmental
regulations. * * *
(1) * * *
(iii) Close the house in which the poultry were held, maintaining
just enough ventilation to remove moisture. Heat the house to 100
[deg]F and begin in-house composting. Leave the house undisturbed for a
minimum of 21 days and for as long as possible thereafter, in order to
allow as much H5/H7 LPAI virus as possible to die a natural death.
* * * * *
(2) * * *
(ii) Cleaning of premises and materials. Cleaning and washing
should be thorough to ensure that all materials or substances
contaminated with H5/H7 LPAI virus, especially manure, dried blood, and
other organic materials, are removed from all surfaces. Spray all
contaminated surfaces above the floor with detergent and water to knock
dust down to the floor, using no more water than necessary. Wash
equipment and houses with detergent and water. Disassemble equipment as
required to clean all contaminated surfaces. Special attention should
be given to automatic feeders and other closed areas to ensure adequate
cleaning. Inspect houses and equipment to ensure that cleaning has
removed all contaminated materials or substances. Rinse with fresh
water and let houses and equipment dry completely before applying
disinfectant.
(iii) Disinfection of premises and materials. When cleaning has
been completed and all surfaces are dry, all interior surfaces of the
structure should be saturated with a disinfectant registered with the
U.S. Environmental Protection Agency (EPA) for AI virus per label
instructions or a disinfectant approved by the EPA for use under a
Federal Insecticide, Rodenticide, and Fungicide Act section 18
exemption. A power spray unit should be used to spray the disinfectant
on all surfaces that may be treated with the disinfectant according to
its EPA label, making sure that the disinfectant gets into cracks and
crevices. Special attention should be given to automatic feeders and
other closed areas to ensure adequate disinfection.
* * * * *

Sec. 56.6 [Amended]

0
7. Section 56.6 is amended by adding the OMB citation ``(Approved by
the Office of Management and Budget under control number 0579-0007)''
at the end of the section.

Sec. 56.7 [Amended]

0
8. Section 56.7 is amended by adding the OMB citation ``(Approved by
the Office of Management and Budget under control number 0579-0007)''
at the end of the section.

0
9. Section 56.8 is amended as follows:
0
a. In paragraph (a)(2), by removing the word ``birds'' and adding the
words ``poultry or eggs'' in its place.
0
b. By redesignating paragraphs (c) and (d) as paragraphs (d) and (e),
respectively, and adding a new paragraph (c) to read as set forth
below.

Sec. 56.8 Conditions for payment.

* * * * *
(c) If a contractor receiving indemnity under this section has
received any payment under his or her contract from the owner of the
poultry or eggs at the time the poultry or eggs are destroyed, the
amount of indemnity for which the contract grower is eligible will be
reduced by the amount of the payment the contract grower has already
received.
* * * * *

Sec. 56.9 [Amended]

0
10. Section 56.9 is amended by adding the OMB citation ``(Approved by
the Office of Management and Budget under control number 0579-0007)''
at the end of the section.

[[Page 10658]]

0
11. In Sec. 56.10, the introductory text of paragraph (a) is revised
to read as follows:

Sec. 56.10 Initial State response and containment plan.

(a) In order for poultry owners within a State to be eligible for
indemnity for 100 percent of eligible costs under Sec. 56.3(b), the
State in which the poultry participate in the Plan must have in place
an initial State response and containment plan that has been approved
by APHIS. The initial State response and containment plan must be
developed by the Official State Agency. In States where the Official
State Agency is different than the Cooperating State Agency, the
Cooperating State Agency must also participate in the development of
the plan. The plan must be administered by the Cooperating State Agency
of the relevant State. This plan must include:
* * * * *

PART 146--NATIONAL POULTRY IMPROVEMENT PLAN FOR COMMERCIAL POULTRY

0
12. The authority citation for part 146 continues to read as follows:

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

0
13. In Sec. 146.1, a new definition of Cooperating State Agency is
added and the definition of H5/H7 LPAI virus infection (infected) is
revised to read as follows:

Sec. 146.1 Definitions.

* * * * *
Cooperating State Agency. Any State authority recognized by the
Department to cooperate in the administration of the provisions of part
56 of this chapter. This may include the State animal health authority
or the Official State Agency.
* * * * *
H5/H7 LPAI virus infection (infected). (1) Poultry will be
considered to be infected with H5/H7 LPAI for the purposes of this part
if:
(i) H5/H7 LPAI virus has been isolated and identified as such from
poultry; or
(ii) Viral antigen or viral RNA specific to the H5 or H7 subtype of
AI virus has been detected in poultry; or
(iii) Antibodies to the H5 or H7 subtype of the AI virus that are
not a consequence of vaccination have been detected in poultry. If
vaccine is used, methods should be used to distinguish vaccinated birds
from birds that are both vaccinated and infected. In the case of
isolated serological positive results, H5/H7 LPAI infection may be
ruled out on the basis of a thorough epidemiological investigation that
does not demonstrate further evidence of H5/H7 LPAI infection, as
determined by APHIS.
(2) The official determination that H5/H7 LPAI virus has been
isolated and identified, viral antigen or viral RNA specific to the H5
or H7 subtype of AI virus has been detected, or antibodies to the H5 or
H7 subtype of AI virus have been detected may only be made by the
National Veterinary Services Laboratories.
* * * * *

Sec. 146.2 [Amended]

0
14. In Sec. 146.2, paragraph (f) is amended by removing the word
``States'' and adding the words ``Cooperating State Agencies'' in its
place.

Sec. 146.4 [Amended]

0
15. Section 146.4 is amended by adding the OMB citation ``(Approved by
the Office of Management and Budget under control number 0579-0007)''
at the end of the section.

Sec. 146.11 [Amended]

0
16. Section 146.11 is amended by adding the OMB citation ``(Approved by
the Office of Management and Budget under control number 0579-0007)''
at the end of the section.

Sec. 146.13 [Amended]

0
17. Section 146.13 is amended by adding the OMB citation ``(Approved by
the Office of Management and Budget under control number 0579-0007)''
at the end of the section.

Sec. 146.14 [Amended]

0
18. Section 146.14 is amended by adding the OMB citation ``(Approved by
the Office of Management and Budget under control number 0579-0007)''
at the end of the section.

Sec. 146.24 [Amended]

0
19. Section 146.24 is amended by adding the OMB citation ``(Approved by
the Office of Management and Budget under control number 0579-0007)''
at the end of the section.

Sec. 146.44 [Amended]

0
20. Section 146.44 is amended by adding the OMB citation ``(Approved by
the Office of Management and Budget under control number 0579-0007)''
at the end of the section.
Done in Washington, DC, this 1\st\ day of March 2010.

John Ferrell,
Deputy Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2010-4874 Filed 3-8-10; 8:45 am]
BILLING CODE 3410-34-S