Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 10645 

1To view the interim rule and the comments we 

received, go to (http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2005-0109). 

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. 

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 FederalState-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 rule1 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 meattype 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. 

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 largescale breeders. We are making no 

changes in response to this comment. 

Auditing 

In the regulations established by the 

interim rule, § 146.11 provides for 

inspection of participating flocks and 

slaughter plants. Paragraph (a) of 

§ 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 § 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 § 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 

§ 146.11 in this final rule. 

Testing 

In the regulations established by the 

interim rule, § 146.13 sets out 

requirements for testing Plan flocks for 

AI. Paragraph (b)(1) of § 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 § 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, § 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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2As 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). 

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, §§ 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 meattype 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, § 56.10(b) provides that if 

a State is designated a U.S. Avian 

Influenza Monitored State, Layers under 

§ 146.24(a) or a U.S. Avian Influenza 

Monitored State, Turkeys under 

§ 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 § 56.10(b). This 

includes live bird markets. However, as 

indicated in §§ 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. 

Definition of H5/H7 LPAI Virus 

Infection (Infected) 

The regulations established by the 

interim rule in §§ 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 §§ 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 §§ 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 §§ 146.1 and 56.1 (as well as 

§ 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 § 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 §§ 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 § 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 


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Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 10649 

to an H5/H7 LPAI outbreak. Paragraph 

(a) of § 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 § 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 § 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 meattype flock in §§ 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 § 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 § 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 § 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, § 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 § 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 § 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 


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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 § 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 § 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 § 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 

§ 146.14, and has an initial State 

response and containment plan that is 

approved by APHIS under § 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 

§ 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 § 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 § 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 § 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 § 146.14 of this chapter, 


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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 § 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 

§ 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 § 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 § 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 § 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 § 146.14 require that the 

diagnostic surveillance program 

encompass all poultry, not just NPIP 

flocks. 

Paragraph (c) of § 56.3 states that if 

the recipient of indemnity for any of the 

activities listed in paragraphs (a)(1) 

through (a)(3) of § 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 governmentfunded 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 § 56.3(c) no longer applies. 

Determination of Indemnity Amounts 

and Appraisals 

In the regulations established by the 

interim rule, § 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 § 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 § 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 preapproved 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 


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3Two sentences in § 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. 

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 § 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 § 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. 

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 § 56.5 and in the initial 

State response and containment plan 

described in § 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 § 56.9, 

‘‘Claims not allowed,’’ relate to the 

provisions in § 56.4. 

Paragraph (a) of § 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 § 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 § 56.4(a)(1) provide that 

poultry may be destroyed before the 

owners of the poultry sign their 


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appraisals if the owners, APHIS, and the 

Cooperating State Agency agree that the 

poultry may be destroyed immediately. 

Paragraph (b) of § 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 § 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 § 56.9(b) refers to an agreement for 

maintenance and repopulation of the 

flock, while the requirements in § 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, § 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 § 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 

§ 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 § 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 § 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 § 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 § 56.5 indicates 

that poultry moved for controlled 

marketing will not be eligible for 


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indemnity under § 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 § 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 § 56.10, which must be 

approved by APHIS. One commenter 

had several comments on paragraph (d). 

Paragraph (d)(1)(i) of § 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 § 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 § 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 inhouse 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 °F before 

beginning in-house composting. 

Paragraph (d)(1)(iv) of § 56.5 provides 

guidance to heat the house to 100 °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 § 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 § 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 § 56.5 provides 

guidance to use disinfectants authorized 

by 9 CFR 71.10(a). The commenter 


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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 § 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 EPAregistered 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 

§ 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, § 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 § 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 

§ 56.8 indicating that if a contract 

grower receiving indemnity under § 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 §§ 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 


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4Lasley, 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. 

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 wellplanned 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 USDAEconomic 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. 

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. 

■ 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 

■ 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. 

■ 2. Section 56.1 is amended by revising 

the definition of H5/H7 LPAI virus 

infection (infected) to read as follows: 

§ 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. 

* * * * * 

§ 56.2 [Amended] 

■ 3. Section 56.2 is amended as follows: 


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■ a. In paragraphs (a)(2) and (a)(3), by 

removing the words ‘‘developed by the 

Official State Agency and’’ each time 

they occur. 

■ b. In paragraph (a)(3), by adding a 

period at the end of the paragraph. 

■ c. In paragraph (c), by removing the 

word ‘‘States’’ and adding the words 

‘‘Cooperating State Agencies’’ in its 

place. 

■ 4. Section 56.3 is amended by revising 

paragraph (b)(7) to read as follows: 

§ 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 § 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 § 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 § 146.14 of this 

chapter, and has an initial State 

response and containment plan for H5/ 

H7 LPAI that is approved by APHIS 

under § 56.10. 

* * * * * 

■ 5. Section 56.4 is amended as follows: 

■ a. In paragraph (a)(2), in the second 

and third sentences, by removing the 

word ‘‘compensation’’ and adding the 

word ‘‘indemnity’’ in its place. 

■ b. In paragraph (c)(2), by adding two 

new sentences after the third sentence 

to read as set forth below. 

■ 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. 

§ 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. * * * 

■ 6. Section 56.5 is amended as follows: 

■ a. In paragraph (a)(7), by removing the 

word ‘‘and’’ at the end of the paragraph. 

■ b. In paragraph (a)(8), by removing the 

period and adding the word ‘‘; and’’ in 

its place. 

■ c. By adding a new paragraph (a)(9) to 

read as set forth below. 

■ d. By revising paragraph (c)(2) to read 

as set forth below. 

■ e. In the introductory text of 

paragraph (d), by adding a new sentence 

before the last sentence to read as set 

forth below. 

■ f. By revising paragraphs (d)(1)(iii), 

(d)(2)(ii), and (d)(2)(iii) to read as set 

forth below. 

■ g. In paragraph (d)(2)(i), by removing 

the word ‘‘washed’’ each time it occurs 

and adding the word ‘‘cleaned’’ in its 

place. 

§ 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 § 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 § 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 °F and begin inhouse 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. 

* * * * * 

§ 56.6 [Amended] 

■ 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. 

§ 56.7 [Amended] 

■ 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. 

■ 9. Section 56.8 is amended as follows: 

■ a. In paragraph (a)(2), by removing the 

word ‘‘birds’’ and adding the words 

‘‘poultry or eggs’’ in its place. 

■ 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. 

§ 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. 

* * * * * 

§ 56.9 [Amended] 

■ 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. 


sroberts on DSKD5P82C1PROD with RULES
10658 Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 

■ 11. In § 56.10, the introductory text of 

paragraph (a) is revised to read as 

follows: 

§ 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 

§ 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 

■ 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. 

■ 13. In § 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: 

§ 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. 

* * * * * 

§ 146.2 [Amended] 

■ 14. In § 146.2, paragraph (f) is 

amended by removing the word ‘‘States’’ 

and adding the words ‘‘Cooperating 

State Agencies’’ in its place. 

§ 146.4 [Amended] 

■ 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. 

§ 146.11 [Amended] 

■ 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. 

§ 146.13 [Amended] 

■ 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. 

§ 146.14 [Amended] 

■ 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. 

§ 146.24 [Amended] 

■ 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. 

§ 146.44 [Amended] 

■ 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 1st 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 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2009–0452; Directorate 

Identifier 2007–NM–326–AD; Amendment 

39–16223; AD 2010–05–13] 

RIN 2120–AA64 

Airworthiness Directives; The Boeing 

Company Model 737–100, –200, –200C, 

–300, –400, and –500 Series Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: The FAA is superseding an 

existing airworthiness directive (AD) 

that applies to all Model 737–100, –200, 

–200C, –300, –400, and –500 series 

airplanes. That AD currently requires a 

one-time inspection for scribe lines and 

cracks in the fuselage skin at certain lap 

joints, butt joints, external repair 

doublers, and other areas; and related 

investigative/corrective actions if 

necessary. This new AD expands the 

area to be inspected and, for certain 

airplanes, requires earlier inspections 

for certain inspection zones. This AD 

results from additional detailed analysis 

of fuselage skin cracks adjacent to the 

skin lap joints on airplanes that had 

scribe lines. The analysis resulted in 

different inspection zones, thresholds 

and repetitive intervals, and airplane 

groupings. We are issuing this AD to 

prevent rapid decompression of the 

airplane due to fatigue cracks resulting 

from scribe lines on pressurized 

fuselage structure. 

DATES: This AD becomes effective April 

13, 2010. 

The Director of the Federal Register 

approved the incorporation by reference 

of a certain publication listed in the AD 

as of April 13, 2010. 

ADDRESSES: For service information 

identified in this AD, contact Boeing 

Commercial Airplanes, Attention: Data 

& Services Management, P.O. Box 3707, 

MC 2H–65, Seattle, Washington 98124– 

2207; telephone 206–544–5000, 

extension 1; fax 206–766–5680; e-mail 

me.boecom@boeing.com; Internet 

https://www.myboeingfleet.com. 


sroberts on DSKD5P82C1PROD with RULES