56302 Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Rules and Regulations 

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: Interim rule and request for 

comments. 

SUMMARY: We are amending the 

regulations to establish a voluntary 

program for the control of the H5/H7 

subtypes of low pathogenic avian 

influenza in commercial poultry under 

the auspices of the National Poultry 

Improvement Plan (the Plan). The 

control program was voted on and 

approved by the voting delegates at the 

Plan’s 2004 National Plan Conference. 

We are also providing for the payment 

of indemnity for costs associated with 

eradication of the H5/H7 subtypes of 

low pathogenic avian influenza in 

poultry. The H5/H7 subtypes of low 

pathogenic avian influenza can mutate 

into highly pathogenic avian influenza, 

a disease that can have serious 

economic and public health 

consequences. This combination of a 

control program and indemnity 

provisions is 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. 

DATES: This interim rule is effective on 

September 26, 2006. We will consider 

all comments that we receive on or 

before November 27, 2006. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and, in the 

‘‘Search for Open Regulations’’ box, 

select ‘‘Animal and Plant Health 

Inspection Service’’ from the agency 

drop-down menu, then click on 

‘‘Submit.’’ In the Docket ID column, 

select APHIS–2005–0109 to submit or 

view public comments and to view 

supporting and related materials 

available electronically. Information on 

using Regulations.gov, including 

instructions for accessing documents, 

submitting comments, and viewing the 

docket after the close of the comment 

period, is available through the site’s 

‘‘User Tips’’ link. 

• Postal Mail/Commercial Delivery: 

Please send four copies of your 

comment (an original and three copies) 

to Docket No. APHIS–2005–0109, 

Regulatory Analysis and Development, 

PPD, APHIS, Station 3A–03.8, 4700 

River Road Unit 118, Riverdale, MD 

20737–1238. Please state that your 

comment refers to Docket No. APHIS– 

2005–0109. 

Reading Room: You may read any 

comments that we receive on this 

docket in our reading room. The reading 

room is located in room 1141 of the 

USDA South Building, 14th Street and 

Independence Avenue, SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 690–2817 before 

coming. 

Other Information: Additional 

information about APHIS and its 

programs is available on the Internet at 

http://www.aphis.usda.gov. 

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 that consists 

of a variety of programs intended to 

prevent and control certain poultry 

diseases. Participation in all Plan 

programs is voluntary, but flocks, 

hatcheries, and dealers of breeding 

poultry 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, and dealers that meet certain 

disease control standards specified in 

the Plan’s various programs. As a result, 

customers can buy poultry that have 

tested clean of certain diseases or that 

have been produced under appropriate 

disease-prevention conditions. Prior to 

the publication of this interim rule, the 

regulations in 9 CFR parts 145 and 147 

(referred to below as the regulations) 

contained the provisions of the Plan. 

In this interim rule, we are amending 

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, meattype chickens, and meat-type turkeys. 

This program will be administered 

under the auspices of the NPIP. Until 

now, the Plan has only addressed 

disease issues, including avian 

influenza (AI), in flocks of breeding 

poultry. To accommodate the addition 

of commercial poultry to the NPIP, this 

interim rule establishes a new part 146, 

titled ‘‘National Poultry Improvement 

Plan for Commercial Poultry,’’ in 9 CFR 

chapter I, subchapter G. This voluntary 

control program is intended to 

complement the voluntary control 

programs for AI in breeding poultry— 

specifically, table-egg layer, meat-type 

chicken, meat-type turkey, and 

waterfowl, exhibition poultry, and game 

bird breeding flocks—that are currently 

contained in part 145 of the Plan’s 

provisions. 

This interim rule also establishes 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. The regulations in part 56 

provide the authority to pay indemnity 

for 100 percent of costs associated with 

the eradication of H5/H7 LPAI to most 

poultry owners. To provide owners of 

large commercial poultry flocks and 

current participants in the Plan for 

breeding poultry with an incentive to 

participate in the voluntary control 

programs for AI in parts 145 and 146, 

this interim rule provides the authority 

to pay indemnity for only 25 percent of 

costs associated with eradication of H5/ 

H7 LPAI to those poultry owners if they 

do not participate in those voluntary 

control programs. 

The regulations in part 56 also 

provide the authority to pay indemnity 

to States that participate in the Plan for 

100 percent of certain costs associated 

with their efforts to eradicate outbreaks 

of H5/H7 LPAI. For States that do not 

participate in the plan, the regulations 

authorize the payment of indemnity for 

25 percent of those costs. 

The reasons we are establishing the 

voluntary control program for 

commercial poultry and providing for 

the payment of indemnity in case of 

outbreaks of H5/H7 LPAI, and the 

provisions of the control program and 

indemnity regulations, are described 

below. 

Increasing Threat of AI 

AI is an infectious disease of birds 

caused by type A strains of the 

influenza virus. The disease, which was 

first identified in Italy more than 100 

years ago, occurs worldwide. All birds 

are thought to be susceptible to 

infection with AI, though some species 

are more resistant to infection than 


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Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Rules and Regulations 56303 

1The OIE’s criteria for listing a disease as one that 

must be reported by OIE members may be viewed 

on the Internet at http://www.oie.int/eng/normes/ 

mcode/en_ chapitre_2.1.1.htm#chapitre_2.1.1. 

others. Wild waterfowl, shorebirds, and 

gulls serve as a natural host and 

reservoir for AI viruses. Fifteen subtypes 

of influenza virus are known to infect 

birds, thus providing an extensive 

reservoir of influenza viruses potentially 

circulating in bird populations. In 

addition, the hemagglutinin (H) protein 

on each subtype of the AI virus can 

theoretically be partnered with any one 

of nine neuraminidase (N) surface 

proteins; thus, there are potentially nine 

different forms of each subtype. (For 

example, the nine forms of subtype H5 

would be notated as H5N1, H5N2, 

H5N3, etc., through H5N9.) 

AI viruses can be classified into low 

pathogenic and highly pathogenic forms 

based on the severity of the illness they 

cause. Most AI virus strains are low 

pathogenic and typically cause few or 

no clinical signs in infected birds. The 

World Organization for Animal Health 

(also known as the OIE), an 

international body that, among other 

things, classifies animal diseases, 

considers subtypes of LPAI other than 

H5 and H7 to be low-risk diseases and 

does not require outbreaks of them to be 

reported by OIE members, of which the 

United States is one. (Diseases whose 

outbreaks OIE members are required to 

report to the OIE are often referred to as 

notifiable diseases, referring to the 

process by which members notify the 

OIE. The OIE has approved changes in 

its classification scheme for LPAI that 

became effective on January 1, 2006; 

further discussion of these changes can 

be found under the heading ‘‘Trade 

Restrictions and OIE Guidelines Related 

to H5/H7 LPAI’’ later in this document.) 

While it can, in rare cases, be 

transmitted from birds to humans, the 

LPAI virus poses no threat to human 

health. 

However, the LPAI virus can mutate 

into a highly contagious and rapidly 

fatal disease, resulting in severe 

epidemics. The more severe form of the 

disease is known as highly pathogenic 

avian influenza (HPAI). To date, all 

outbreaks of the highly pathogenic form 

have been caused by influenza A viruses 

of subtypes H5 and H7. 

During the past 20 years, several 

examples of H5 and H7 LPAI viruses 

mutating into HPAI viruses have been 

documented worldwide (table 1). 

TABLE 1.—INSTANCES IN WHICH LPAI 

VIRUSES OF SUBTYPES H5 AND H7 

MUTATED INTO HPAI VIRUSES

Location Year 

Pennsylvania, United States 1983–1984 

Mexico .................................. 1994–1995 

Italy ....................................... 1999 

Chile ...................................... 2002 

British Columbia, Canada ..... 2004 

Evidence continues to accumulate 

that LPAI viruses of the H5 and H7 

subtypes, if permitted to circulate in 

poultry populations, can mutate into 

HPAI viruses; the larger the number of 

birds infected with H5/H7 LPAI, the 

more likely it is that the virus will 

mutate into HPAI in one of them. 

HPAI is characterized by sudden 

onset, severe illness, and rapid death, 

with a mortality rate that can approach 

100 percent. HPAI is listed by the OIE 

as a notifiable disease, meaning that 

outbreaks of HPAI must be reported by 

OIE members. Diseases listed as 

notifiable are those that exhibit some 

combination of potential for 

international spread, potential for 

significant morbidity or mortality 

among populations not exposed to the 

disease, and potential for transmission 

to humans (and, if that potential is 

present, potential for severe 

consequences of infection in humans). 

The OIE also takes into account whether 

the disease is an emerging disease when 

determining whether to list it. Although 

it is not an emerging disease, HPAI 

fulfills all the other conditions for being 

listed as a notifiable disease, including 

having the potential for severe 

consequences of infection in humans.1

The number of outbreaks of HPAI in 

the world’s commercial poultry has 

grown in the years since 1955 (table 2), 

with particularly dramatic growth in the 

last 10 years. There is also evidence that 

AI virus has been directly transmitted 

from birds to humans several times in 

recent years (table 3). Incidents of 

human infection with HPAI are 

specifically noted in the table. 

TABLE 2.—OUTBREAKS OF HPAI BY

DECADE SINCE 1955 

Years Number of 

outbreaks 

1955–1964 ............................ 3 

1965–1974 ............................ 1 

1975–1984 ............................ 4 

1985–1994 ............................ 5 

1995–2004 ............................ 10 

TABLE 3.—TRANSMISSION OF AI VIRUS FROM BIRDS TO HUMANS

Location Year Virus subtype 

Hong Kong ................................................................................................................................. 1997 H5N1 (HPAI). 

Hong Kong ................................................................................................................................. 1999 H9N2. 

Virginia, United States ............................................................................................................... 2002 H7N2 (mild upper respiratory infection and conjunctivitis). 

The Netherlands ........................................................................................................................ 2003 H7N7 (HPAI). 

New York, United States ........................................................................................................... 2003 H7N2 (immunosuppressed individual). 

Southeast Asia, Iraq, Turkey ..................................................................................................... 2003–2006 H5N1 (HPAI). 

British Columbia, Canada .......................................................................................................... 2004 H7N3 (HPAI). 

As mentioned previously, the 

transmission of HPAI from birds to 

humans poses serious risks for public 

health. The first documented infection 

of humans with an avian influenza virus 

occurred in Hong Kong in 1997, when 

the H5N1 strain caused severe 

respiratory disease in 18 humans, of 

whom 6 died. The infection of humans 

coincided with an epidemic of HPAI, 

caused by the same strain, in Hong 

Kong’s poultry population. 

Since December 2003, a growing 

number of Southeast Asian countries 

have reported outbreaks of HPAI 

responsible for the deaths of millions of 

birds and at least 105 humans. The 

World Health Organization (WHO) 

reports that these outbreaks of H5N1 

HPAI among poultry are the largest and 

most severe on record, and that all the 

conditions for a human pandemic of 

H5N1 influenza have been met save the 

establishment of efficient and sustained 


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56304 Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Rules and Regulations 

2See ‘‘WHO Avian influenza frequently asked 

questions’’ at http://www.who.int/csr/disease/ 

avian_influenza/avian_faqs/en/index.html (as of 

August 11, 2006). 

3The recommendations may be viewed on the 

Internet at http://www.oie.int/eng/normes/mcode/ 

en_chapitre_2.7.12.htm. 

human-to-human transmission of the 

virus. The WHO further warns that ‘‘the 

risk that the H5N1 virus will acquire 

this ability will persist as long as 

opportunities for human infections 

occur. These opportunities, in turn, will 

persist as long as the virus continues to 

circulate in birds, and this situation 

could endure for some years to come.’’ 2

Trade Restrictions and OIE Guidelines 

Related to H5/H7 LPAI 

Given the information discussed 

above about the ability of H5/H7 LPAI 

to mutate into HPAI, several U.S. 

trading partners have put in place 

restrictions on the importation of 

poultry and poultry products in an 

effort to prevent the introduction of H5/ 

H7 LPAI. Additionally, the U.S. 

Department of Agriculture has observed 

that some trading partners now require 

a greater level of assurance that neither 

HPAI nor LPAI exist in source flocks for 

poultry exported from the United States. 

The European Union (EU) has 

reported that it is currently considering 

the option of including H5/H7 LPAI in 

its statutory definition of AI. This would 

mean that poultry or poultry products 

exported to the EU from countries 

where H5/H7 LPAI is present would be 

subject to the same stringent 

requirements that apply to poultry or 

poultry products exported to the EU 

from countries where HPAI is present. 

The EU is also considering what 

regulatory responses, possibly including 

the use of vaccines, may be appropriate 

for outbreaks of H5/H7 LPAI in the EU. 

In addition, spurred by the increasing 

importance of controlling H5/H7 LPAI, 

the OIE adopted new guidelines for AI 

in its Terrestrial Animal Health Code 

chapter on AI in May 2005. These 

guidelines became effective on January 

1, 2006.3 The OIE guidelines in the 

Terrestrial Animal Health Code are 

recognized by the World Trade 

Organization as international 

recommendations for animal disease 

control. 

The new OIE guidelines define 

notifiable avian influenza (NAI) as an 

infection of poultry caused by any 

influenza A virus of the H5 or H7 

subtypes or by any AI virus with an 

intravenous pathogenicity index greater 

than 1.2, or, as an alternative, an AI 

virus with at least 75 percent mortality. 

NAI viruses are divided into highly 

pathogenic notifiable avian influenza 

and low pathogenicity notifiable avian 

influenza. However, with regard to such 

issues as restrictions on importation, 

eradication of outbreaks, and 

determination of whether a country or a 

region within a country is free of AI, the 

guidelines treat HPAI and H5/H7 LPAI 

as posing similar risks. 

Under the new guidelines, therefore, 

OIE members are obligated to report 

outbreaks of H5/H7 LPAI in addition to 

outbreaks of HPAI. In addition, in order 

to export poultry and poultry products 

to countries whose regulations are 

modeled on the OIE guidelines, 

countries or regions within countries 

may conceivably be required to have in 

place surveillance mechanisms 

sufficient to demonstrate freedom from 

both H5/H7 LPAI and HPAI and disease 

response measures sufficient to 

eradicate H5/H7 LPAI and HPAI. 

Establishing such surveillance 

mechanisms and disease response 

measures is one of the purposes of this 

interim rule. 

Current AI Control and Surveillance 

Within the United States 

HPAI does not currently exist in the 

United States. However, H7N2 LPAI 

viruses have been present in the poultry 

markets of New York and New Jersey 

since 1994. The amino acid sequences 

of the hemagglutinin proteins from 

some of these viruses have been found 

to carry more than two basic amino 

acids adjacent to the hemagglutinin 

cleavage site, raising concern that 

additional mutations could result in a 

highly pathogenic virus. 

In addition, occasional LPAI 

outbreaks in commercial poultry in the 

United States, such as the LPAI 

outbreaks in Virginia, Delaware, 

Connecticut, Maryland, and Texas, have 

led some countries to place restrictions 

on the importation of poultry and 

poultry products from the United States. 

In the United States, a combination of 

active and diagnostic surveillance for AI 

is used. Diagnostic surveillance 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. 

Active surveillance for AI in U.S. 

poultry has been conducted in three 

settings. The first involves the National 

Poultry Improvement Plan disease 

control provisions for breeding poultry 

in 9 CFR part 145. The Plan provides for 

a ‘‘U.S. Avian Influenza Clean’’

classification for table-egg layer 

breeding flocks in § 145.23(h); for meattype chicken breeding flocks in 

§ 145.33(l); and for waterfowl, 

exhibition poultry, and game bird 

breeding flocks in § 145.53(e). The Plan 

also provides for a ‘‘U.S. H5/H7 Avian 

Influenza Clean’’ classification for 

turkey breeding flocks in § 145.43(g). 

These active surveillance programs are 

used to certify baby chicks, poults, and 

hatching eggs for interstate commerce or 

export from the United States. All flocks 

tested since these programs began in 

2000 have returned negative results for 

AI. 

Second, in recent years a number of 

broiler and turkey meat producers have 

begun conducting AI serology tests on 

samples collected from their flocks just 

prior to slaughter to meet the 

requirements Mexico has established for 

exporting poultry meat to that country. 

Since Mexico established this 

requirement, all flocks tested in order to 

fulfill it have returned negative results 

for AI. 

Third, several States have established 

AI surveillance programs based on the 

risk of AI exposure unique to their 

States or regions. For example, 

Minnesota has a long-standing AI 

surveillance program for turkeys; Texas 

established a surveillance program for 

commercial poultry flocks near the 

Mexican border following the Mexican 

HPAI outbreak in 1994–95; and 

Pennsylvania, New York, and New 

Jersey have ongoing surveillance 

programs in live bird markets and their 

supply flocks as a result of the LPAI 

infections that persist in that marketing 

system. 

However, given the risk that a 

persistent H5/H7 LPAI infection could 

mutate into HPAI, the possible trade 

disruptions that may be associated with 

H5/H7 LPAI now and in the future, and 

the OIE’s adoption of guidelines 

designating H5/H7 LPAI as a notifiable 

disease, we believe that it is necessary 

to establish a national control program 

that provides for active and diagnostic 

surveillance for H5/H7 LPAI in both 

commercial and breeding poultry flocks. 

In case H5/H7 LPAI is discovered, we 

believe it is also necessary to establish 

a plan for controlling and eradicating 

H5/H7 LPAI outbreaks and to provide 

the authority to pay indemnity for costs 

associated with control and eradication 

of the disease. 

Overall Approach of the Voluntary 

Control and Indemnity Program 

Accordingly, the Animal and Plant 

Health Inspection Service (APHIS), the 

U.S. Animal Health Association’s 

Transmissible Diseases of Poultry 

Committee, and the National Poultry 

Improvement Plan have worked to 

develop regulatory options for H5 and 


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Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Rules and Regulations 56305 

4These guidelines may be viewed on the Internet 

at http://www.oie.int/eng/normes/mcode/ 

en_chapitre_3.8.9.htm#chapitre_3.8.9. 

5See the Terrestrial Animal Health Code General 

Definitions at http://www.oie.int/eng/normes/ 

mcode/ 

en_chapitre_1.1.1.htm#terme_compartiment. 

H7 LPAI for commercial poultry—

specifically, table-egg layers, meat-type 

chickens, and meat-type turkeys. These 

options were intended to augment the 

current active surveillance programs for 

breeding flocks of table-egg layers, meattype chickens, meat-type turkeys, and 

waterfowl, exhibition poultry, and game 

birds that have been included in the 

NPIP. (We may develop programs for 

surveillance and control of H5/H7 LPAI 

in other types of commercial or breeding 

poultry in the future.) 

During a meeting APHIS organized 

with State and industry representatives 

that took place in May 2002 in San 

Antonio, TX, participants identified 

three key components that the H5/H7 

LPAI program should contain. In 

cooperation with States and industry, 

APHIS developed provisions describing 

such a program; these provisions were 

approved at the July 2004 NPIP meeting 

in San Francisco, CA, and they form the 

basis of this interim rule. In each of 

these components, Federal, State, and 

industry stakeholders all have an 

important part to play, and efforts to 

detect and eradicate outbreaks of H5/H7 

LPAI will rely on cooperation among all 

three groups. Each component of the 

program is discussed in detail below. 

The first component discussed here is 

a diagnostic surveillance program for all 

poultry, undertaken by the Official State 

Agencies according to plans approved 

by APHIS. In the new part 146 

establishing the voluntary control 

program, § 146.14 sets out criteria for a 

diagnostic surveillance program. Each 

State that wishes to participate in the 

Plan for commercial poultry must 

implement a diagnostic surveillance 

program that is approved by APHIS. 

However, the diagnostic surveillance 

programs that States are required to 

implement apply to all poultry in the 

State, not just those included in the 

NPIP. 

Diagnostic surveillance programs 

developed under this interim rule will 

designate H5/H7 LPAI as a disease 

reportable to the State veterinarian and 

require that 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. This is consistent with 

the recommendation in paragraph 2a of 

Article 3.8.9.2 of the OIE Guidelines for 

Surveillance of Avian Influenza.4

The second component discussed 

here is the initial State response and 

containment plans for each participating 

State that are required by the new part 

56 established by this interim rule. 

These plans detail what actions will be 

taken in response to an outbreak of H5/ 

H7 LPAI; they will also be developed by 

the States, and they must be approved 

by APHIS before a State can begin 

participation in the voluntary control 

and indemnity program. Where the 

regulations in part 56 set out uniform 

requirements for emergency response, 

they are consistent with the OIE 

guidelines. 

The requirements for both the 

diagnostic surveillance plan and the 

initial State response and containment 

plan provide for some level of variation 

on the State level, as long as the plans 

meet certain performance standards. As 

noted previously, several States already 

have diagnostic surveillance and 

emergency response measures of some 

kind in place for H5/H7 LPAI. (We are 

aware of State LPAI surveillance 

programs in Arkansas, California, 

Delaware, Georgia, Iowa, Maryland, 

Minnesota, North Carolina, 

Pennsylvania, Texas, and Virginia. 

However, it is difficult to estimate the 

proportion of U.S. poultry that are 

covered by State programs, as other 

States may also have such initiatives in 

place.) We believe it is better to build a 

Federal program that recognizes State 

activities than to replace them with a 

strictly Federal program. In our 

judgment, the States that already have 

control measures in place to address 

H5/H7 LPAI may be able to adapt those 

measure to meet the performance 

standards that this interim rule sets out 

for surveillance and emergency 

response measures with few or no 

changes. For States that do not have 

control measures in place to address 

H5/H7 LPAI, the combination of State 

autonomy with Federal review will give 

States flexibility to develop plans based 

on local conditions, including industry 

organization, marketing patterns, and 

anticipated disease risks, while ensuring 

that the State-developed control 

measures meet minimum standards for 

surveillance and emergency response. 

The third component in the voluntary 

control program is active surveillance, 

based on testing of birds or eggs for 

breeding poultry and commercial tableegg layers and testing at the flock level 

or at slaughter for commercial meat-type 

chickens and meat-type turkeys, and 

conducted according to plans detailed 

in the regulations. The active 

surveillance program focuses on 

establishing that individual 

compartments are free of H5/H7 LPAI. 

The OIE defines a compartment as ‘‘one 

or more establishments under a 

common biosecurity management 

system containing an animal 

subpopulation with a distinct health 

status with respect to a specific disease 

or specific diseases for which required 

surveillance, control and biosecurity 

measures have been applied for the 

purpose of international trade.’’ 5 For 

poultry types grown to produce eggs 

(breeding poultry and table-egg layers), 

the compartment level of organization is 

the flock. For poultry types grown to 

produce meat (meat-type chickens and 

meat-type turkeys), the compartment 

level of organization is the slaughter 

plant and all the flocks under the same 

ownership as or otherwise affiliated 

with the slaughter plant. (For 

information on affiliation with a 

slaughter plant, see the section headed 

‘‘Administration’’ later in this 

document.) 

In 9 CFR part 145, the Plan provides 

for a ‘‘U.S. Avian Influenza Clean’’

classification for table-egg layer 

breeding flocks, for meat-type chicken 

breeding flocks, and for waterfowl, 

exhibition poultry, and game bird 

breeding flocks. The Plan also provides 

for a ‘‘U.S. H5/H7 Avian Influenza 

Clean’’ classification for turkey breeding 

flocks. The ‘‘Clean’’ designation is used 

because these programs require testing 

of 30 birds per flock; these requirements 

are sufficient to establish the flocks as 

free of AI (or, in the case of turkeys, H5/ 

H7 AI) at a 95 percent confidence 

interval for a 10 percent infection rate. 

Table-egg layer flocks, meat-type 

chicken and meat-type turkey slaughter 

plants, and States participating in the 

voluntary control program in 9 CFR part 

146 may earn the ‘‘U.S. H5/H7 Avian 

Influenza Monitored’’ classification. In 

the case of table-egg layer and meat-type 

chicken flocks, the programs require 

testing of 11 birds per flock or per shift, 

which is sufficient to establish the 

flocks and slaughter plants as free of 

H5/H7 LPAI at a 95 percent confidence 

interval for a 25 percent infection rate, 

for any size group of birds. In the case 

of meat-type turkeys, fewer birds are 

tested, but the testing is concentrated on 

birds showing clinical symptoms 

consistent with H5/H7 LPAI. The higher 

infection rate targeted in the testing for 

commercial poultry is appropriate 

because, in practice, an H5/H7 LPAI 

infection in one bird in a commercial 

poultry flock would quickly spread to 

almost all the other birds in the flock. 


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56306 Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Rules and Regulations 

The active surveillance programs for 

the NPIP apply only to the types of 

poultry cited above and only to flocks 

or slaughter plants that participate in 

the NPIP. In addition, for commercial 

poultry, a participating flock or 

slaughter plant is required to participate 

in the active surveillance program only 

if it is larger than a certain size 

standard. For table-egg layer flocks, the 

standard is 75,000 birds, which is 

consistent with the American Egg 

Board’s definition of commercial egg 

producers. For meat-type chicken 

slaughter plants, the standard is 

slaughtering 200,000 meat-type 

chickens in an operating week, while for 

meat-type turkey slaughter plants, the 

standard is slaughtering 2 million meattype turkeys in a 12-months period; 

both of these standards are consistent 

with Watt Publishing Companies’ listing 

of commercial meat-type chicken and 

turkey slaughter operations, 

respectively. 

Although we chose these size 

standards based on standard industry 

references, the purpose behind having 

size standards is to concentrate 

resources on testing flocks and slaughter 

plants that are associated with a 

relatively high percentage of the total 

U.S. population of commercial poultry 

of these types. Estimates indicate that 

the poultry associated with flocks and 

slaughter plants above these size 

standards comprise a very high 

percentage of the total number of 

commercial poultry: 

• According to the American Egg 

Board, the top 260 table-egg layer 

producers own over 3,000 flocks with 

75,000 hens or more. Together, these 

flocks comprise approximately 95 

percent of all table-egg layers in the 

United States. 

• According to Watt Publishing 

Companies, the top 20 U.S. meat-type 

chicken producers produce 91 percent 

of the entire U.S. production of chicken 

meat; these companies slaughter 

approximately 152.71 million birds a 

week. The next 20 companies slaughter 

approximately 17.5 million birds a 

week. Meat-type chicken slaughter 

plants owned by these companies 

slaughter well over 200,000 birds a 

week. The top 40 chicken companies in 

the United States produce close to 100 

percent of the annual U.S. broiler meat 

production. 

• According to Watt Publishing 

Companies, the top 27 meat-type turkey 

companies produce over 6992.9 million 

pounds of live weight turkey meat 

annually, approximately 97 percent of 

U.S. annual production of turkey meat. 

The slaughter plants owned by all of 

these 27 companies slaughter more than 

2 million birds in a 12-month period. 

By concentrating the active 

surveillance on such flocks and 

slaughter plants, we believe we will be 

employing the Federal, State, and 

industry resources that will be used to 

conduct this surveillance as effectively 

as possible. We invite comment from 

the public on whether these size 

standards and our use of them are 

appropriate. 

Flocks and slaughter plants that 

participate in these programs thus can 

make statements about their freedom 

from H5/H7 LPAI. In addition, for tableegg layers and meat-type turkeys, a State 

can be declared a H5/H7 LPAI 

Monitored State with respect to those 

types of poultry if all large flocks or 

slaughter plants are participating in the 

relevant program in part 146 and certain 

other conditions are fulfilled. (No Statelevel program exists for meat-type 

chickens; we do not believe such a 

program is necessary.) Records of testing 

under the active surveillance programs 

will be made available for inspection by 

State and APHIS personnel. 

The OIE guidelines also recommend 

that surveillance mechanisms be 

established for high-risk populations of 

poultry such as places where birds and 

poultry of different origins are mixed, 

such as live bird markets, and poultry 

in close proximity to waterfowl. These 

surveillance mechanisms are not part of 

this interim rule. However, it is 

important to note that these issues are 

addressed in other APHIS programs and 

activities. For example, in the live bird 

marketing system, 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. In addition, in 

spring 2006, under the interagency 

HPAI plan, the USDA and its 

cooperators planned to collect between 

75,000 and 100,000 samples from live 

and dead wild birds in all States and 

50,000 samples of water or feces from 

high-risk waterfowl habitats across the 

United States for the purposes of AI 

surveillance. These programs are 

consistent with the OIE 

recommendation. 

The program we are establishing is 

voluntary because some producers and 

some States may not wish to participate. 

Fulfilling the requirements of the 

program will entail some additional 

costs for producers and States. However, 

the incentives to participate are also 

considerable. Under this interim rule, 

APHIS is authorized to pay 100 percent 

indemnity for the destruction and 

disposal of poultry infected with or 

exposed to H5/H7 LPAI; 100 percent 

indemnity for the destruction of any 

eggs destroyed during testing of poultry 

for H5/H7 LPAI during an outbreak of 

H5/H7 LPAI; and 100 percent indemnity 

for cleaning and disinfecting premises, 

conveyances, and materials (or, in 

certain cases, for the destruction and 

disposal of materials) to most producers, 

including all participants in the 

voluntary control programs, provided 

that the State in which the outbreak 

occurs is a participant in the control 

program and has developed an initial 

State response and containment plan 

that has been approved by APHIS. For 

commercial poultry producers who do 

not choose to participate in the 

voluntary H5/H7 LPAI control programs 

in part 146, and for breeding poultry 

producers who participate in the Plan 

but do not participate in the AI control 

programs in part 145, this interim rule 

authorizes APHIS to pay indemnity for 

only 25 percent of the costs of those 

activities. (A detailed description of the 

conditions that would cause a producer 

to be eligible for 25 percent indemnity 

can be found later in this document 

under the heading ‘‘Payment of 

Indemnity.’’) 

In addition, under this interim rule, 

APHIS is authorized to establish 

cooperative agreements with 

Cooperating State Agencies to pay for 

costs associated with the eradication of 

H5/H7 LPAI outbreaks and to transfer 

vaccine for H5/H7 LPAI for use by 

Cooperating State Agencies in 

accordance with the initial State 

response and containment plan, as 

approved by APHIS. Costs that may be 

paid under a cooperative agreement 

include the cost of surveillance and 

monitoring associated with poultry that 

have been infected with or exposed to 

H5/H7 LPAI and the cost of vaccine 

administration by Cooperating State 

Agencies. APHIS is authorized to pay 

100 percent of these costs to 

participating States and 25 percent of 

these costs to nonparticipating States. 

All States with commercial poultry 

operations that meet the size standards 

of the control program we have 

developed currently participate in the 

NPIP for breeding poultry, and they are 

expected to participate in the program 

established by this interim rule. In 

addition, the State Poultry Executive 

Association has indicated that all State 

poultry associations strongly support 

the control program; the National 

Chicken Council, National Turkey 

Federation, United Egg Producers, and 

U.S. Poultry and Egg Association have 

indicated their strong support as well. 

On the producer level, 100 percent of 

commercial table-egg layer chickens, 


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meat-type chickens, and meat-type 

turkeys that meet the size standards of 

the control program we have developed 

are currently produced from breeding 

flocks that participate in the NPIP. 

Besides this natural link to the NPIP, 

and the indemnity incentives described 

earlier, another incentive for 

participation is the fact that 

participation in the H5/H7 LPAI control 

program has the potential to serve as a 

seal of approval for producers who wish 

to export their products to foreign 

markets; as discussed earlier in this 

document, countries modeling their 

regulations on the OIE guidelines may 

in the future establish requirements that 

poultry and poultry products originate 

from flocks in H5/H7 LPAI control 

programs. It is believed that the possible 

loss of export markets for 

nonparticipants in the event of an 

outbreak of H5/H7 LPAI, combined with 

the indemnity incentives, will bring a 

very high percentage of the commercial 

poultry industry into the new voluntary 

program. We expect that at least 90 

percent of commercial poultry 

operations that meet the size standards 

will participate. This is similar to the 

participation level in the current Plan 

programs for breeding flocks, in which 

we have a nearly 100 percent 

participation level from chicken and 

turkey companies. With the proposed 

surveillance levels, a 90 percent 

participation rate would accomplish the 

goals of the program. Outreach and 

education from NPIP office through the 

Official State Agencies will be necessary 

to maintain participation levels. 

For these reasons, we do not believe 

that making the program voluntary will 

have an adverse effect on its ability to 

prevent outbreaks of H5/H7 LPAI within 

the United States; rather, we believe 

most commercial poultry producers and 

States with substantial commercial 

poultry industries will participate in the 

voluntary program, particularly given 

that on the State level the program 

allows for some flexibility. In addition, 

the diagnostic surveillance portion will 

allow for the detection of H5/H7 LPAI 

in any non-participating establishments. 

As described, the voluntary control 

program established by this interim rule 

is consistent with the three key 

characteristics that a control program for 

H5/H7 LPAI in the commercial poultry 

industry should have, as identified at 

the May 2002 meeting: 

1. Autonomy for the Official State 

Agency (the animal health authority in 

a particular State recognized by APHIS 

to cooperate in the administration of the 

Plan) wherever possible; 

2. Federal review of surveillance and 

response measures at the State level; 

and 

3. Voluntary participation for 

producers on a cooperative basis with 

State and Federal authorities. 

Differences Between This Approach and 

the Approach Used To Control LPAI 

Outbreaks in Virginia and Texas in 2002 

In 2002, nearly 4 million birds were 

depopulated under State and Federal 

authority in Virginia and Texas due to 

outbreaks of H7 LPAI (in Virginia) and 

H5 LPAI (in Texas). In order to provide 

an incentive for poultry owners and 

contract growers to participate in the 

depopulation effort, APHIS provided 

compensation to poultry owners and 

contract growers in Virginia in an 

interim rule published in the Federal 

Register on November 4, 2002, and 

made effective December 9, 2002 (67 FR 

67089–67096, Docket No. 02–048–1). A 

subsequent final rule effective and 

published in the Federal Register on 

July 18, 2003 (68 FR 42565–42570, 

Docket No. 02–048–2) provided 

compensation to poultry owners and 

contract growers in Texas for the same 

costs for which Virginia poultry owners 

and contract growers were compensated 

in the November 2002 interim rule and 

adjusted the percentage of costs for 

which indemnity was provided to 

poultry owners in both States. 

The specific provisions relating to 

these outbreaks established by the 

November 2002 interim rule and the 

July 2003 final rule in the general 

indemnity regulations in 9 CFR part 53 

have been the only regulations in 9 CFR 

chapter I dealing specifically with 

compensation for outbreaks of H5 or H7 

LPAI. Since the approach of the 

regulations we are establishing in 9 CFR 

part 56 differs in some respects from the 

approach of the regulations established 

by the November 2002 interim rule and 

the July 2003 final rule, we will discuss 

here how and why the approaches 

differ. 

The November 2002 interim rule 

allowed for poultry owners to receive 

compensation for 50 percent of the costs 

they incurred related to destruction and 

disposal of birds affected by H5 or H7 

LPAI, minus the amount paid in 

compensation to contract growers; the 

July 2003 final rule increased that 

amount to 75 percent. Under both rules, 

contract growers were eligible to receive 

indemnity for 100 percent of the costs 

they incurred; this compensation was 

subtracted from the compensation paid 

to the poultry owners. Costs eligible for 

indemnity under 9 CFR part 53 

included the market value of the birds 

destroyed and the costs of destruction 

and disposal of animals and materials 

required to be destroyed to eradicate a 

disease and the cost of cleaning and 

disinfection of premises, conveyances, 

and materials. (While the regulations 

did not state this explicitly, 

compensation was paid for eggs 

destroyed during the Virginia and Texas 

LPAI outbreaks for testing for H5/H7 

LPAI.) 

Prior to the publication of this interim 

rule, any Federal indemnification 

relating to H5/H7 LPAI would have 

been paid under the authority of the 

general indemnity regulations in 9 CFR 

part 53; indemnity would have been 

provided in the context of a cooperative 

program with a State, and APHIS was 

authorized to provide indemnity for 50 

percent of the above costs in accordance 

with § 53.2(b). 

The new part 56 we are establishing 

will provide indemnity for the market 

value, destruction, and disposal of 

poultry that have been infected with or 

exposed to H5/H7 LPAI; the destruction 

of any eggs destroyed during an 

outbreak for testing for H5/H7 LPAI; and 

cleaning and disinfection of premises, 

conveyances, and materials that were 

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, indemnity for the 

destruction and disposal of the 

materials. These costs are identical to 

the costs for which indemnity was 

provided for the LPAI outbreaks in 

Virginia and Texas. 

However, the new part 56 also 

establishes mechanisms to address some 

additional costs not explicitly included 

in the indemnity provided for the 

outbreaks in Virginia and Texas. This 

interim rule also provides for the 

establishment of cooperative agreements 

with Cooperating State Agencies to pay 

for the costs of surveillance and 

monitoring, to transfer vaccine from 

APHIS to a State under certain controls, 

and to pay for vaccine administration 

associated with an outbreak. Although 

the November 2002 and July 2003 rules 

did not discuss the issue, the costs of 

surveillance and monitoring were also 

assumed by APHIS in the Virginia and 

Texas outbreaks; vaccination was not 

used in those control and eradication 

efforts. 

Cooperative agreements established 

under this interim rule will provide for 

payment of the costs of surveillance and 

monitoring only as they relate to a 

specific disease outbreak. We are 

providing for the authority to pay the 

cost of surveillance and monitoring as 

they relate to a disease outbreak because 


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we believe it is appropriate for APHIS 

to pay for actions undertaken at APHIS’

direction to confirm successful 

eradication of an outbreak of H5/H7 

LPAI. 

Cooperative agreements established 

under this interim rule may also provide 

for the transfer of vaccine from APHIS 

to a State for disease control purposes, 

provided that the vaccine is transferred 

and used in accordance with a 

previously approved initial State 

response and containment plan, and 

provide for the payment to the States of 

the cost of administering the vaccine. 

Compared to the cost of depopulation of 

poultry, vaccination of poultry can be a 

more cost-effective method of 

controlling the spread of LPAI. (It 

should be noted that, under this interim 

rule, vaccination for H5/H7 LPAI may 

not be performed except as a disease 

control method after an outbreak has 

occurred.) For example, a table-egg layer 

can be vaccinated for AI with two 

inoculations at a total cost of 25 cents 

per bird. By comparison, the total cost 

to APHIS, the Cooperating State Agency, 

and the poultry owner of depopulating 

and replacing a table-egg layer can reach 

$10 per bird. Thus, for a typical 2- 

million-bird table-egg layer complex, 

the difference in cost between 

vaccination and depopulation could 

reach $19.5 million. Therefore, we 

believe it is important to explicitly 

provide for both the transfer of vaccine 

and its administration, subject to 

appropriate controls, to ensure that this 

means of controlling the spread of LPAI 

is available to APHIS and to 

Cooperating State Agencies. 

As noted previously, the new 

regulations in part 56 will provide for 

the authority to pay indemnity of 100 

percent of eligible costs for most 

producers and will provide for the 

establishment of cooperative agreements 

with participating States through which 

States will be eligible to receive 100 

percent of the costs covered under the 

cooperative agreements. We believe that 

providing for the payment of 100 

percent of eligible costs, rather than 75 

percent as in the July 2003 final rule, is 

appropriate because participants in the 

H5/H7 LPAI control program that this 

interim rule establishes 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. 

While APHIS has recently provided 

funding to States for ongoing LPAI 

surveillance under cooperative 

agreements, these do not come close to 

covering the total State and industry 

cost of participation in the program; for 

example, the NPIP budgeted $2 million 

in fiscal year 2006 for cooperative 

agreements with 24 States for LPAI 

surveillance in commercial poultry, but 

the State costs for surveillance for LPAI 

were reported to be $15 million, while 

the industry costs were reported to be 

$25 million, based on the costs of the 

testing conducted in the NPIP. We 

expect that the States and industry 

would continue to bear most of the cost 

burden after the publication of this 

interim rule, as they have for the 

provisions of the NPIP relating to 

breeding poultry. Therefore, in the event 

of an outbreak, it is appropriate to 

indemnify participating owners of 

commercial poultry flocks that meet 

certain size standards for the full 

amount of the costs that are eligible for 

indemnity and that are associated with 

the outbreak and to pay for the full 

amount of costs that Cooperating State 

Agencies incur in eradicating the 

outbreak. 

The interim rule also provides for the 

authority to pay 100 percent indemnity 

to owners of flocks that do not meet 

these size standards, regardless of 

whether these smaller flocks are 

participating in the NPIP. We believe 

that providing for the payment of 100 

percent of eligible costs to all flock 

owners is appropriate because the OIE 

now lists all H5 and H7 AI viruses, both 

LPAI and HPAI, as serious diseases that 

are required to be reported by member 

countries. In essence, the premise of the 

OIE guidelines is that, because H5/H7 

LPAI has the potential to mutate into 

HPAI, it should be treated very similarly 

to HPAI by member countries. 

Therefore, we believe that it is 

consistent to provide for payment of 100 

percent indemnity for costs associated 

with H5/H7 LPAI to large commercial 

poultry producers and breeding poultry 

producers who participate in the 

voluntary control program, all small 

poultry producers, and participating 

States, as we do for costs associated 

with HPAI under the general indemnity 

regulations in § 53.2(b). Given expected 

participation rates, this will mean that 

100 percent indemnity will be available 

for almost all producers and States. 

Providing indemnity for 25 percent of 

associated costs for the small number of 

commercial poultry producers and 

States who do not participate in the 

Plan and breeding poultry producers 

who participate in the Plan but not in 

its AI programs serves to encourage 

participation in the voluntary control 

program, whose surveillance 

requirements are consistent with the 

OIE guidelines. 

Finally, the indemnity regulations 

established in this interim rule also 

provide for the distribution of payments 

between producers and contract 

growers. The distribution of payments 

provided for in this interim rule is 

similar to the one APHIS used to 

distribute indemnity that was paid to 

producers and contract growers due to 

LPAI outbreaks in Virginia and Texas in 

2002. This will help ensure full 

participation by contract growers in the 

diagnostic surveillance program 

described later in this document. This 

formula is described in detail under the 

heading ‘‘Conditions For Payment’’ later 

in this document. 

Prior to the publication of this interim 

rule, 9 CFR part 53 still contained 

indemnity provisions relating to the 

LPAI outbreaks in Virginia and Texas in 

2002. We have paid all the indemnity 

claims related to these incidents that we 

anticipate paying. To update the 

regulations, this interim rule removes 

the indemnity provisions relating to the 

LPAI outbreaks in Virginia and Texas in 

2002 from 9 CFR part 53. 

Section-by-Section Explanation of New 

Parts 146 and 56 

In this interim rule, in a new part 146, 

we are providing for the establishment 

of active and diagnostic surveillance 

programs for commercial table-egg 

layers, meat-type chickens, and meattype turkeys; these programs will be 

developed by each participating State 

and approved by APHIS. Participating 

commercial table egg-layer, meat-type 

chicken, and meat-type turkey flocks 

may earn the classification ‘‘U.S. H5/H7 

Avian Influenza Monitored.’’ States 

participating in the active surveillance 

programs may also earn the 

classification ‘‘U.S. H5/H7 Avian 

Influenza Monitored State’’ with respect 

to commercial table-egg layers and 

meat-type turkeys. (As discussed earlier 

in this document, the AI programs in 9 

CFR part 145 for table-egg layer, meattype chicken, and waterfowl, exhibition 

poultry, and game bird breeding flocks 

provide the classification ‘‘U.S. Avian 

Influenza Clean,’’ and the AI program 

for turkey breeding flocks provides the 

classification ‘‘U.S. H5/H7 Avian 

Influenza Clean.’’ Currently, the NPIP 

contains no State classifications relating 

to AI for breeding poultry.) The new 

part 146 also contains specific 

requirements for collecting samples to 

test for AI and guidelines for States to 


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use in establishing a diagnostic 

surveillance program. 

Where possible, the language and 

structure of new 9 CFR part 146 is 

modeled on that of 9 CFR part 145, 

which, as noted above, contains the 

provisions of the NPIP that apply to 

breeding poultry. The NPIP provisions 

in part 145 are well established and 

familiar to many poultry producers, and 

we believe that modeling the new part 

146 on part 145 will enhance the 

effectiveness of the new Plan provisions 

for commercial poultry. We have not 

included provisions from part 145 that 

are not relevant to commercial poultry 

in the new part 146. 

The new part 56 provides for the 

payment of indemnity in the event of an 

H5/H7 LPAI outbreak and for the 

establishment of cooperative agreements 

between APHIS and Official State 

Agencies to control H5/H7 outbreaks. It 

also sets out requirements for 

determining the value of destroyed 

poultry and eggs, for cleaning and 

disinfecting affected premises, for 

presenting claims, for distribution of 

payments, and for developing an initial 

State response and containment plan. 

The provisions of part 146 provide for 

testing and diagnostic surveillance in 

commercial table-egg layers, meat-type 

chickens, and meat-type turkeys. Part 56 

includes those poultry in its provisions 

for eradication of H5/H7 LPAI and 

payment of indemnity, and many of the 

provisions of part 56 refer to provisions 

of part 146, such as the State diagnostic 

surveillance plan for all poultry in the 

State or the active surveillance programs 

for commercial poultry. 

However, because part 56 is intended 

first and foremost to allow APHIS to pay 

indemnity to help eradicate outbreaks of 

H5/H7 LPAI, the regulations in part 56 

allow us to pay indemnity to owners of 

breeding poultry and both commercial 

and non-commercial poultry, such as 

poultry grown for live bird markets. 

This represents a change from the 

indemnity provisions developed at the 

July 2004 NPIP meeting, but we expect 

that it will be necessary to pay 

indemnity for all types of poultry in 

order to eradicate H5/H7 LPAI 

outbreaks. 

As explained later in this document 

(see the section titled ‘‘Payment of 

Indemnity’’ below), commercial 

producers that are above certain size 

standards will still have an indemnitybased incentive to participate in the 

NPIP provisions in part 146, and they 

will still be eligible to receive 100 

percent indemnity if they do. 

The specific provisions of parts 146 

and 56 are discussed in more detail 

below. 

Control Program Provisions in 9 CFR 

Part 146 

Definitions 

Section 146.1 sets out definitions for 

the terms Administrator, Animal and 

Plant Health Inspection Service 

(APHIS), Authorized Agent, authorized 

laboratory, Department, domesticated, 

equivalent, Official State Agency, 

person, Plan, program, Service, and 

State Inspector that are substantively 

identical to the definitions of those 

terms in § 145.1. In addition, § 146.1 

sets out definitions of State and United 

States that are drawn directly from the 

Animal Health Protection Act. 

The other definitions below are new 

in part 146. For the convenience of the 

reader, we have set out the definitions 

of Official State Agency and Plan below. 

Affiliated flock. A meat-type flock that 

is owned by or has an agreement to 

participate in the Plan with a slaughter 

plant and that participates in the Plan 

through that slaughter plant. 

For meat-type poultry, the control 

program in part 146 is organized around 

the participation of slaughter plants, 

which typically own the flocks that are 

slaughtered at the plants. Affiliation 

with a slaughter plant through an 

agreement can be a way for a flock not 

owned by a slaughter plant to 

participate in the Plan. This issue is 

discussed in more detail under the 

heading ‘‘Participation’’ later in this 

document. 

Classification. A designation earned 

by participation in a Plan program. 

Commercial meat-type flock. All of 

the meat-type chickens or meat-type 

turkeys on one farm. However, at the 

discretion of the Official State Agency, 

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 may be considered as a 

separate flock. 

We are allowing for groups of meattype poultry to be considered separate 

flocks if they have been segregated from 

other poultry on the farm for 21 days in 

case H5/H7 LPAI infects one group of 

poultry on a farm but not another one, 

and the Official State Agency 

determines that biological security 

measures sufficient to prevent the 

transmission of H5/H7 LPAI in place 

were adequate to prevent the 

transmission of H5/H7 LPAI between 

the two groups. (The H5 and H7 

subtypes of LPAI can in some cases 

have low enough virulence to make 

such measures practical, although final 

judgment is up to the Official State 

Agency.) The 21-day period is 

consistent with the new OIE guidelines 

regarding NAI discussed earlier in this 

document. This provision will allow the 

number of meat-type poultry that would 

be depopulated in the case of an H5/H7 

LPAI outbreak to be kept to a minimum 

if possible. 

Commercial table-egg layer flock. All 

table-egg layers of one classification in 

one barn or house. 

Commercial table-egg layer premises. 

A farm containing contiguous flocks of 

commercial table-egg layers under 

common ownership. 

The regulations address commercial 

table-egg layers on the premises level 

because a single commercial table-egg 

layer premises typically contains several 

poultry houses with flocks of different 

ages. 

H5/H7 low pathogenic avian 

influenza (LPAI). An infection of 

poultry caused by an influenza A virus 

of H5 or H7 subtype that has an 

intravenous pathogenicity index test in 

6-week-old chickens less than 1.2 or any 

infection with influenza A viruses of H5 

or H7 subtype for which nucleotide 

sequencing has not demonstrated the 

presence of multiple basic amino acids 

at the cleavage site of the 

hemagglutinin. 

H5/H7 LPAI virus infection (infected). 

Poultry will be considered to be infected 

with H5/H7 LPAI for the purposes of 

part 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 

• 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. 

The definitions of H5/H7 LPAI and 

H5/H7 LPAI infection thus provide 

specific criteria for determining whether 

a bird is infected with H5/H7 LPAI. 

With one exception they are consistent 

with the OIE guidelines regarding NAI 

that were discussed earlier in this 

document. The OIE definition of NAI, 

which includes both HPAI and H5/H7 

LPAI, mentions detecting the virus or 

viral antigens or RNA in products 

derived from poultry. However, only 

HPAI virus has been found in products 

derived from poultry; research indicates 

that live LPAI virus is not found in 


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6See David E. Swayne and Joan R. Beck, 

‘‘Experimental Study to Determine if LowPathogenicity and High-Pathogenicity Avian 

Influenza Viruses Can Be Present in Chicken Breast 

and Thigh Meat Following Intranasal Virus 

Inoculation,’’ Avian Diseases 49:81–85, 2005. 

poultry meat or from other products 

derived from poultry. 6 Therefore, we 

have not included that part of the OIE 

definition in our definition of H5/H7 

LPAI infection. 

Official State Agency. The State 

authority recognized by the Department 

to cooperate in the administration of the 

Plan. 

Plan. The provisions of the National 

Poultry Improvement Plan contained in 

part 146. 

Poultry. Domesticated chickens and 

turkeys that are bred for the primary 

purpose of producing eggs or meat. 

The definition of poultry is similar to 

the definitions of that term in § 145.1 

but has been adapted to refer 

specifically to the types of poultry 

included in part 146. 

Administration 

Section 146.2 sets out the conditions 

under which the provisions of part 146 

are administered. These conditions are 

substantively identical to those under 

which the Plan’s provisions in part 145 

for breeding poultry are administered; 

we believe they will be effective for 

commercial poultry as well. 

Paragraph (a) of this section states that 

the Department cooperates through a 

Memorandum of Understanding with 

Official State Agencies in the 

administration of the Plan. 

Paragraph (b) of this section states 

that the administrative procedures and 

decisions of the Official State Agency 

are subject to review by the Service (i.e., 

APHIS) and that the Official State 

Agency shall carry out the 

administration of the Plan within the 

State according to the applicable 

provisions of the Plan and the 

Memorandum of Understanding. 

Paragraph (c)(1) of this section allows 

an Official State Agency to accept for 

participation a commercial table-egg 

layer flock or a commercial meat-type 

flock (including an affiliated flock) 

located in another participating State 

under a mutual understanding and 

agreement, in writing, between the two 

Official State Agencies regarding 

conditions of participation and 

supervision. If a flock is located in a 

State that does not participate in the 

Plan, paragraph (c)(2) provides that such 

a flock may participate with a 

participating State under a mutual 

understanding and agreement, in 

writing, between the owner of the flock 

and the Official State Agency regarding 

conditions of participation and 

supervision. These provisions ensure 

that flocks are able to participate in the 

Plan in States other than the State in 

which they are located when such 

participation is desirable to facilitate 

participation in the Plan. In particular, 

these provisions allow affiliated flocks 

that are located in a State other than the 

one in which the slaughter plant with 

which they are participating is located 

to participate in the Plan in the State in 

which the slaughter plant is located. 

The Plan does not provide for 

slaughter plants to participate in a State 

other than the State in which they are 

located, because the sample collection 

that may take place at slaughter plants 

must be overseen by the local Official 

State Agency. 

Paragraph (d) of this section allows 

the Official State Agency of any State to 

adopt regulations applicable to the 

administration of the Plan in that State 

that further define the provisions of the 

Plan or establish higher standards that 

are compatible with the Plan. 

Paragraph (e) of this section requires 

that an authorized laboratory of the 

NPIP follow the laboratory protocols 

outlined in 9 CFR part 147 when 

determining the status of a participating 

flock with respect to an official Plan 

classification. 

Paragraph (f) of this section states that 

the Official State Agency will be 

responsible for making the 

determination to request Federal 

assistance under 9 CFR part 56 in the 

event of an outbreak of H5/H7 LPAI. 

While the provisions of 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 (and described in further 

detail later in this document) 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 

regulations in 9 CFR part 56, by 

contrast, provide that APHIS may pay 

indemnity for destroyed birds and eggs 

and for certain other activities; because 

indemnity may be paid from Federal 

funds under these regulations, all 

actions taken under part 56 are subject 

to APHIS review and approval. Given 

this administrative structure, some 

Official State Agencies may prefer to 

eradicate outbreaks of H5/H7 LPAI 

without invoking APHIS assistance 

when it is feasible for them to do so. 

With this provision and a similar 

provision in § 56.2(c), the new H5/H7 

LPAI control and indemnity regulations 

allow for this flexibility. If a State 

decides that APHIS assistance is 

necessary, we will support that State to 

the greatest extent our resources allow. 

Participation 

Section 146.3 sets out the conditions 

under which commercial table-egg 

producers and commercial meat-type 

chicken and meat-type turkey flocks and 

slaughter plants may participate in the 

Plan. These provisions ensure that 

participants in the Plan comply with 

Plan requirements. 

For commercial meat-type chickens 

and meat-type turkeys, the control 

program in part 146 is organized around 

the participation of slaughter plants. 

This is because slaughter plants for 

commercial meat-type chickens and 

meat-type turkeys are typically owned 

by the same entity that owns the birds 

themselves. Thus, when slaughter 

plants participate in the Plan, the 

owners of those slaughter plants are able 

to ensure that the flocks from which 

meat-type chickens and meat-type 

turkeys are sent to the slaughter plants 

meet the testing requirements of the 

control program. Under the surveillance 

programs for meat-type chickens and 

meat-type turkeys, slaughter plants have 

the option to conduct surveillance 

either at the slaughter plant or in the 

flocks that will eventually be sent to the 

slaughter plant. 

Independently owned meat-type 

flocks may participate in the Plan by 

becoming affiliated with a slaughter 

plant that participates in the Plan. 

Owners of independently owned flocks 

participating in this manner would have 

to either allow surveillance to be 

conducted at the slaughter plant or 

conduct surveillance themselves in the 

flocks, depending on how the slaughter 

plant participates in the Plan. 

Since commercial table-egg layers are 

organized for production purposes at 

the flock level, the control program 

provides for their participation at the 

flock level. 

Paragraph (a) of this section states that 

any table-egg producer and any meattype chicken or meat-type turkey 

producer or slaughter plant may 

participate in the Plan when the 

producer or plant has demonstrated, to 

the satisfaction of the Official State 

Agency, that its facilities, personnel, 

and practices are adequate for carrying 

out the relevant special provisions of 

this part and has signed an agreement 

with the Official State Agency to 

comply with the relevant special 

provisions in subparts B, C, or D of part 

146. (We use the phrase ‘‘relevant 

special provisions’’ because some 

commercial poultry flocks and slaughter 

plants that may participate in the Plan 


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are not required to comply with the 

special provisions due to size 

requirements. These provisions are 

discussed in greater detail later in this 

document.) 

Paragraph (b) of this section requires 

that each participant comply with the 

Plan throughout the operating year, or 

until released by the Official State 

Agency. 

Paragraph (c) of this section requires 

that a participating slaughter plant 

participate with all of the meat-type 

chicken and/or meat-type turkey flocks 

that are processed at the facility, 

including affiliated flocks. Only if all 

the flocks participating at a slaughter 

plant have been produced under Planapproved biosecurity controls and 

surveillance programs can the plant be 

considered to be participating in the 

Plan, according to the OIE guidelines. It 

also requires that affiliated flocks 

participate through a written agreement 

with a participating slaughter plant that 

is approved by the Official State 

Agency. This requirement ensures that 

the Official State Agency is aware of all 

the flocks participating with any 

slaughter plant and has an opportunity 

to approve the terms of their 

participation. 

Paragraph (d) of this section states 

that participation in the Plan shall 

entitle the participant to use the Plan 

participant emblem. The Plan 

participant emblem is often used as a 

marketing tool by participants, so it is 

important to include a statement in the 

regulations specifically allowing its use 

only by Plan participants. 

Paragraph (e) of this section states that 

participation in the NPIP by commercial 

table-egg layers is limited to 2 years 

after the effective date of this interim 

rule unless the majority of the 

commercial table-egg layer delegates 

vote to continue the program in 

accordance with subpart E of 9 CFR part 

147 at the National Plan Conference. We 

have included this provision because, at 

the July 2004 NPIP meeting in San 

Francisco, CA, the commercial table-egg 

layer industry indicated that it wanted 

to make its participation in the Plan 

conditional. If that industry decides at 

a National Plan Conference after the 

publication of this interim rule that it 

wants to continue its participation in 

the NPIP, we will remove paragraph 

§ 146.3(e) from the regulations. If that 

industry decides that it does not want 

to continue its participation, we will 

amend part 146 to remove the special 

provisions for table-egg layers in subpart 

B of that part and will remove 

references to table-egg layers in subpart 

A. We would then evaluate the available 

regulatory options to ensure that the 

voluntary control program could 

continue to provide an adequate level of 

surveillance for H5/H7 LPAI. 

General Provisions for All Participating 

Flocks and Slaughter Plants 

Section 146.4 sets out general 

provisions with which all flocks and 

slaughter plants that participate in the 

Plan must comply. 

Paragraph (a) of this section requires 

that records that establish the identity of 

products handled be maintained in a 

manner satisfactory to the Official State 

Agency. Adequate recordkeeping will 

allow any necessary investigations to be 

conducted more efficiently. 

Paragraph (b) of this section states 

that material that is used to advertise 

products shall be subject to inspection 

by the Official State Agency at any time. 

Paragraph (c) states that advertising 

must be in accordance with the Plan 

and applicable rules and regulations of 

the Official State Agency and the 

Federal Trade Commission. Paragraph 

(c) further states that a participant 

advertising products as being of any 

official classification may include in 

their advertising reference to associated 

or franchised slaughter or production 

facilities only when such facilities 

produce products of the same 

classification. These provisions ensure 

that Plan participation is not 

misrepresented for marketing purposes. 

Paragraph (d) states that each Plan 

participant shall be assigned a 

permanent approval number by APHIS. 

This number, prefaced by the numerical 

code of the State, will be the official 

approval number of the participant and 

may be used on each certificate, invoice, 

shipping label, or other document used 

by the participant in the sale of the 

participant’s products. Each Official 

State Agency which requires an 

approval number for out-of-State 

participants to ship into its State shall 

honor this number. The assignment of a 

permanent approval number helps in 

tracking Plan participation. In addition, 

the requirement that Official State 

Agencies honor the permanent approval 

numbers assigned to participants when 

administering State import requirements 

helps simplify the interstate movement 

process for producers. 

Specific Provisions for Participating 

Flocks 

Section 146.5 requires that: 

• Participating flocks, and all 

equipment used in connection with the 

flocks, be separated from nonparticipating flocks in a manner 

acceptable to the Official State Agency; 

and 

• Poultry equipment, and poultry 

houses and the land in the immediate 

vicinity thereof, be kept in sanitary 

condition as recommended in 

§ 147.21(c). 

These requirements are similar to 

requirements in § 145.5(a). The 

provision requiring that participating 

flocks be separated from nonparticipating flocks ensures that 

participating flocks are not subject to 

the higher risks of disease presence 

associated with non-participating flocks. 

The requirement that poultry 

equipment, and poultry houses and the 

land in the immediate vicinity thereof, 

be kept in sanitary condition will help 

to mitigate any risks of disease for 

participating flocks. 

Specific Provisions for Participating 

Slaughter Plants 

Section 146.6 sets out specific 

provisions for participating slaughter 

plants. These provisions are: 

• Only meat-type chicken and meattype turkey slaughter plants that are 

under continuous inspection by the 

Food Safety and Inspection Service of 

the U.S. Department of Agriculture or 

under State inspection that the Food 

Safety Inspection Service has 

recognized as equivalent to federal 

inspection may participate in the Plan. 

• To participate in the Plan, meattype chicken and meat-type turkey 

slaughter plants must follow the 

relevant special provisions for sample 

collection and flock monitoring in 

§§ 146.33(a) and 146.43(a), respectively, 

unless they are exempted from the 

special provisions under §§ 146.32(b) or 

146.42(b), respectively. The specific 

provisions require routine monitoring 

for H5/H7 LPAI of all flocks slaughtered 

at the slaughter plants. 

Testing for meat-type chickens and 

meat-type turkeys may be performed 

either at the slaughter plant or at the 

flock level. As discussed earlier in this 

document, slaughter plants for 

commercial meat-type chickens and 

meat-type turkeys are typically owned 

by the same entity that owns the birds 

themselves; thus, when slaughter plants 

participate in the Plan, the owners of 

those slaughter plants are able to ensure 

that the flocks from which meat-type 

chickens and meat-type turkeys are sent 

to the slaughter plants meet the testing 

requirements in §§ 146.33(a) and 

146.43(a). Affiliated flocks that are not 

owned by the slaughter plant with 

which they participate will agree on 

how testing is to be conducted in the 

written agreement between the affiliated 

flock and the slaughter plant. On the 

other hand, table-egg layers are tested at 

the flock level either within 30 days of 


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disposal or once every 12 months. (The 

provisions for monitoring of table-egg 

layer flocks are described in more detail 

under the heading ‘‘Subpart B—Special 

Provisions for Commercial Table-Egg 

Layer Flocks’’ later in this document.) 

Terminology and Classification 

Section 146.7 states that classification 

terms and illustrative designs associated 

with those terms may only be used by 

participants in the Plan and may only be 

used to describe products that have met 

all the specific requirements of those 

classifications. Section 146.8 states that 

participating slaughter plants shall be 

designated as ‘‘U.S. H5/H7 Avian 

Influenza Monitored,’’ and all Official 

State Agencies shall be notified by 

APHIS of additions, withdrawals, and 

changes in classification. Section 146.9 

sets out the various classifications that 

may be earned by participating flocks 

(including affiliated flocks), products 

produced from those flocks, and States, 

and provides illustrative designs 

corresponding to those classifications 

that may be used by those flocks and 

States. The organization, language, and 

designs in these sections are modeled 

on those contained in similar provisions 

in §§ 145.8 through 145.10. 

The specific testing requirements for 

each type of poultry in 9 CFR part 146 

are discussed in detail later in this 

document. 

Supervision 

Section 146.10 authorizes the Official 

State Agency to designate qualified 

persons as Authorized Agents to do the 

sample collecting provided for in 

§ 146.13, which sets out sample 

collection procedures for the blood test 

for AI. It also states that the Official 

State Agency may employ or authorize 

qualified persons as State Inspectors to 

perform the selecting and testing of 

participating flocks and to perform the 

official inspections necessary to verify 

compliance with the requirements of the 

Plan. Under this section, the authorities 

issued to Authorized Agents and State 

Inspectors are subject to cancellation by 

the Official State Agency on the grounds 

of incompetence or failure to comply 

with the provisions of the Plan or 

regulations of the Official State Agency. 

Such actions shall not be taken until 

thorough investigation has been made 

by the Official State Agency and the 

authorized person has been given notice 

of the proposed action and the basis 

thereof and an opportunity to present 

his or her views. These provisions allow 

the Official State Agency to designate 

persons to administer the various 

provisions of the Plan and to withdraw 

that designation on the grounds of 

incompetence or failure to comply with 

the provisions of the Plan or regulations 

of the Official State Agency. 

Inspections 

All slaughter plants and flocks of 

commercial poultry that participate in 

the Plan must comply with the 

inspection requirements of § 146.11. 

The requirements are: 

• Each participating slaughter plant 

shall 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. 

• On-site inspections of flocks and 

premises will be conducted if a State 

Inspector determines that a breach of 

testing has occurred for the Plan 

programs for which the flocks are 

certified. 

• The official H5/H7 LPAI testing 

records of all participating flocks and 

slaughter plants shall be examined 

annually by a State Inspector. Official 

H5/H7 LPAI testing records shall be 

maintained for 3 years. 

Compliance with these auditing and 

inspection requirements will serve to 

establish that the participating flock or 

slaughter plant is complying with the 

surveillance requirements of the Plan. 

These requirements are also important 

because, as discussed earlier in this 

document, participating table-egg layer 

premises with fewer than 75,000 birds 

and participating slaughter plants that 

slaughter fewer than 200,000 meat-type 

chickens per week or 2 million meattype turkeys per year are exempt from 

the special provisions, including the 

active surveillance requirements, for 

table-egg layer premises, meat-type 

chicken slaughter plants, and meat-type 

turkey slaughter plants in subparts B, C, 

and D, respectively, of part 146. 

However, participating table-egg layer 

premises with fewer than 75,000 birds 

and participating slaughter plants that 

slaughter fewer than 200,000 meat-type 

chickens per week or 2 million meattype turkeys per year must be audited 

and, if necessary, inspected according to 

this section in order to participate in the 

Plan, which will help to ensure that 

they are complying with the 

requirements of subpart A of part 146. 

Debarment From Participation 

Section 146.12 describes the 

procedures by which participants in the 

Plan may be debarred from 

participation. Under this section, 

participants in the Plan who, after 

investigation by the Official State 

Agency or its representative, are notified 

in writing of their apparent 

noncompliance with the Plan provisions 

or regulations of the Official State 

Agency shall be afforded a reasonable 

time, as specified by the Official State 

Agency, within which to demonstrate or 

achieve compliance. If compliance is 

not demonstrated or achieved within 

the specified time, the Official State 

Agency may debar the participant from 

further participation in the Plan for such 

period, or indefinitely, as the Official 

State Agency may deem appropriate. 

The debarred participant shall be 

afforded notice of the bases for the 

debarment and opportunity to present 

his or her views with respect to the 

debarment in accordance with 

procedures adopted by the Official State 

Agency. The Official State Agency shall 

thereupon decide whether the 

debarment order shall continue in 

effect. Such decision shall be final 

unless the debarred participant, within 

30 days after the issuance of the 

debarment order, requests the 

Administrator of APHIS to determine 

the eligibility of the debarred 

participant for participation in the Plan. 

In such an event, the Administrator 

shall determine the matter de novo in 

accordance with the rules of practice in 

7 CFR part 50. 

Testing 

Section 146.13 sets out requirements 

relating to testing samples for H5/H7 

LPAI. Either egg yolk or blood samples 

may be used for testing. 

Paragraph (a) of this section contains 

requirements for sample collection and 

preparation. Paragraph (a)(1) requires 

that egg yolk samples be collected and 

prepared in accordance with the 

requirements in § 147.8. Prior to the 

publication of this interim rule, § 147.8, 

‘‘Procedures for preparing egg yolk 

samples for diagnostic tests,’’ had 

referred only to testing for Mycoplasma 

gallisepticum and M. synoviae. We 

believe the procedures for preparation 

of egg yolk samples in this section will 

work equally well for preparing egg yolk 

samples for testing for H5/H7 LPAI. 

Accordingly, we are amending the 

introductory text of § 147.8 to indicate 

that the procedure may be used for 

preparing samples for testing for the 

U.S. H5/H7 AI Monitored 

Classifications in part 146. We are also 

amending paragraph (b)(7) of that 

section to indicate that subsequent 

testing for H5/H7 LPAI must be 

performed in accordance with the 

requirements in paragraph (b) of 

§ 146.13. 

Paragraph (a)(2) contains specific 

requirements for collection and storage 

of blood samples to be tested for LPAI, 

including when and how blood should 


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7This plan, as well as the plans for meat-type 

chickens and meat-type turkeys discussed later in 

Continued 

be collected from birds, when and how 

the sample should be refrigerated, and 

what measures should be taken to 

ensure that the sample can be reliably 

tested. It also states that blood samples 

must be drawn by an Authorized Agent 

or State Inspector, as designated in 

accordance with § 146.10. The details of 

these requirements are set out in the 

rule portion of this document. 

Paragraph (b) of § 146.13 sets out the 

requirements for testing for AI. Under 

this paragraph, the official tests for AI 

are the agar gel immunodiffusion 

(AGID) test and the enzyme-linked 

immunosorbent assay (ELISA). Both 

tests can be used on either egg yolk or 

blood samples. The procedures for 

testing for avian influenza using AGID 

and ELISA are set out in § 147.9. 

The ELISA, a rapid, sensitive test, is 

typically used to perform initial testing 

on samples. Any samples that are found 

to be positive using ELISA must be 

confirmed using the AGID test, which is 

more time-consuming but provides 

more accurate results. Any samples that 

are found to be positive by AGID must 

be further tested and subtyped by 

Federal Reference Laboratories using the 

hemagglutination inhibition test, which 

can provide a definitive diagnosis. Final 

judgment as to whether a sample is 

positive for H5/H7 LPAI may be based 

upon further sampling or culture 

results. The official determination of a 

flock as positive for H5/H7 LPAI may be 

made only by the National Veterinary 

Services Laboratories in Ames, IA 

(NVSL). 

The AGID and ELISA tests must be 

conducted using antigens or test kits 

approved by APHIS. Test kits must be 

licensed by APHIS and approved by the 

Official State Agency and must be used 

in accordance with the 

recommendations of the producer or 

manufacturer. 

Diagnostic Surveillance Program for H5/ 

H7 LPAI 

Section 146.14 provides for the 

diagnostic surveillance program 

mentioned above under the heading 

‘‘Overall Approach of Voluntary Control 

and Indemnity Program.’’ It requires the 

Official State Agency to develop a 

diagnostic surveillance program for H5/ 

H7 LPAI for all poultry (not just 

commercial poultry) in the State. The 

exact provisions of the program are at 

the discretion of the States. APHIS will 

use the standards below in assessing 

individual State plans for adequacy, 

including the specific provisions that 

the State developed. The standards 

should be used by States in developing 

those plans. 

The regulations in this section require 

that AI 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/H7 LPAI 

directly to APHIS) 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. 

We believe any plan that adequately 

fulfills these guidelines will ensure that 

possible infections of H5/H7 LPAI are 

promptly reported to responsible State 

authorities, which can then take any 

further action that may be required. 

The diagnostic surveillance plan 

performance standards specifically 

mention that H5/H7 LPAI should be 

reported directly to APHIS. APHIS is 

the governmental organization 

authorized to represent the United 

States to the OIE; we have included this 

provision to ensure that only APHIS, 

rather than any individual State, makes 

a report of H5/H7 LPAI to the OIE. 

Subpart B—Special Provisions for 

Commercial Table-Egg Layer Flocks 

Subpart B (§§ 146.21 through 146.24) 

of part 146 provides special provisions 

of the Plan with which participating 

table-egg layer flocks and States must 

comply in order to be eligible for the 

U.S. Avian Influenza Monitored 

classification. 

Section 146.21, ‘‘Definitions,’’ sets out 

a definition of table-egg layer that reads: 

‘‘A domesticated chicken grown for the 

primary purpose of producing eggs for 

human consumption.’’

Section 146.22, ‘‘Participation,’’ states 

that participating flocks of table-egg 

layers must comply both with the 

applicable general provisions of subpart 

A of part 146 and the special provisions 

of subpart B of part 146. However, the 

section exempts participating table-egg 

laying premises with fewer than 75,000 

birds from the special provisions of 

subpart B. 

Section 146.23, ‘‘Terminology and 

classification; flocks and products,’’ sets 

out the active surveillance requirements 

for participating commercial table-egg 

layer flocks. The active surveillance 

requirements in § 146.23(a) are intended 

for table egg-laying premises of 75,000 

birds or more. However, producers of 

smaller table-egg layer flocks may wish 

to participate in the NPIP to use its seal 

of approval as a marketing tool. 

Therefore, smaller table-egg layer flocks 

are eligible to participate in the NPIP. 

We believe that diagnostic surveillance 

in accordance with § 146.14 and 

inspections in accordance with § 146.11, 

which are required in the general 

provisions in subpart A, are adequate to 

determine whether H5/H7 LPAI is 

present on such premises. 

The indemnity provisions we are 

establishing in part 56 provide authority 

to pay indemnity for only 25 percent of 

costs to any table-egg layer premises 

that has 75,000 or more birds and that 

does not participate in the active 

surveillance described in § 146.23(a). As 

discussed earlier, the 75,000-bird 

standard is consistent with the 

American Egg Board’s definition of 

commercial egg producers and will 

concentrate resources on testing flocks 

that comprise a relatively high 

percentage of the total U.S. population 

of commercial table-egg layers. 

Under paragraph (a) of § 146.23, a 

table egg-layer flock is eligible for the 

U.S. H5/H7 Avian Influenza Monitored 

designation if it meets one of the 

following requirements: 

• It is a table-egg layer flock in which 

a minimum of 11 birds or egg samples 

from the same flock have been tested 

negative for antibodies to the H5/H7 

subtypes of avian influenza within 30 

days prior to disposal; 

• It is a table-egg layer flock in which 

a minimum of 11 birds or egg samples 

from the same flock have been tested 

negative for antibodies to the H5/H7 

subtypes of avian influenza within a 12- 

month period; or 

• The flock has an ongoing active and 

diagnostic surveillance program for H5/ 

H7 LPAI in which the number of birds 

or egg samples tested is equivalent to 

the number required by one of the first 

two options. Such a program must be 

approved by the Official State Agency 

and APHIS. 

Both of the first two testing 

requirements are sufficient to establish 

commercial table-egg layer flocks as free 

of H5/H7 LPAI at a 95 percent 

confidence interval for a 25 percent 

infection rate, and both are consistent 

with the new OIE guidelines for 

surveillance of NAI that were discussed 

earlier in this document.7 These testing 


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56314 Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Rules and Regulations 

this document, was developed in accordance with 

the OIE guidelines in the Terrestrial Animal Health 

Code Chapter 3.8.9, ‘‘Guidelines for surveillance of 

avian influenza,’’ and in accordance with Dr. Victor 

Beal’s reference Regulatory Statistics (sixth edition, 

June 1983). For details of the testing plan, please 

contact the person listed under FOR FURTHER

INFORMATION CONTACT. 

requirements are designed to ensure that 

participating flocks are tested at least 

once each operating year. Most laying 

flocks are in lay for almost 2 years and 

are then disposed of; the first testing 

requirement ensures that if a 

participating flock is tested once and 

then disposed of prior to the passing of 

a second 12-month period, it will be 

tested again prior to disposal. 

Any ongoing active and diagnostic 

surveillance program that is approved 

by the Official State Agency and APHIS 

would have to test a number of birds or 

egg samples equivalent to the other two 

options, but this by itself would not be 

sufficient to secure approval for the 

program; the Official State Agency and 

APHIS would have to agree that the 

detailed testing plan for the alternate 

program is sufficient to establish a level 

of confidence for the detection of AI that 

is equivalent to that of the other two 

options. Allowing owners of 

participating flocks to develop an 

alternative ongoing active and 

diagnostic surveillance program of 

equivalent efficacy will give the flock 

owners some flexibility. 

Section 146.24, ‘‘Terminology and 

classification; States,’’ sets out the 

requirements for States to be eligible for 

the U.S. H5/H7 Avian Influenza 

Monitored State, Layers classification. 

These requirements are contained in 

paragraph (a)(1) of § 146.24. The 

requirements are: 

• All table-egg layer flocks in 

production within the State that are not 

exempt from the special provisions of 

subpart B under § 146.22 are classified 

as U.S. H5/H7 Avian Influenza 

Monitored under § 146.23(a); 

• All egg-type chicken breeding 

flocks in production within the State are 

classified as U.S. Avian Influenza Clean 

under § 145.23(h); 

• All persons performing poultry 

disease diagnostic service within the 

State must be required to report to the 

Official State Agency, within 24 hours, 

the source of all table-egg layer 

specimens that were deemed positive on 

an official test for AI, as designated in 

§ 146.13(a); 

• All table-egg layer specimens that 

were deemed positive on an official test 

for AI, as designated in § 146.13(a) must 

be sent to an authorized laboratory for 

subtyping; and 

• All table-egg layer flocks within the 

State found to be infected with H5/H7 

LPAI must be quarantined, in 

accordance with an initial State 

response and containment plan as 

described in 9 CFR part 56 and under 

the supervision of the Official State 

Agency. APHIS may revoke this 

classification if: 

• There is a discontinuation of any of 

the above conditions; 

• Repeated outbreaks of H5/H7 LPAI 

occur in table-egg layer flocks; or 

• An infection spreads from the 

originating premises. 

APHIS will not revoke a classification 

until a thorough investigation has been 

made by APHIS and the Official State 

Agency has been given an opportunity 

for a hearing in accordance with rules 

of practice adopted by the 

Administrator, as described in § 146.12. 

(The language governing revocation of 

classification is similar to language used 

to describe revocation of State 

classifications in part 145.) 

It should be noted that participation 

in the U.S. H5/H7 Avian Influenza 

Monitored State, Layers program is not 

a precondition for State participation in 

the Plan; rather, it is an optional 

program that States may pursue if an 

Official State Agency and the table-egg 

layer owners in that State wish to use 

the designation of U.S. H5/H7 Avian 

Influenza Monitored State, Layers. 

Subpart C—Special Provisions for MeatType Chicken Slaughter Plants 

Subpart C (§§ 146.31 through 146.33) 

of part 146 provides special provisions 

of the Plan with which participating 

meat-type chicken slaughter plants must 

comply in order to be eligible for the 

U.S. H5/H7 Avian Influenza Monitored 

classification. We do not believe it is 

necessary to provide for a U.S. H5/H7 

Avian Influenza Monitored State 

classification for meat-type chickens at 

this time. However, 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. 

Section 146.31, ‘‘Definitions,’’ sets out 

a definition of meat-type chicken that 

reads: ‘‘A domesticated chicken grown 

for the primary purpose of producing 

meat, including but not limited to 

broilers, roasters, fryers, and cornish’’

and a definition of meat-type chicken 

slaughter plant that reads: ‘‘A meat-type 

chicken slaughter plant that is federally 

inspected or under State inspection that 

the Food Safety Inspection Service has 

recognized as equivalent to federal 

inspection.’’ It also defines shift as: 

‘‘The working period of a group of 

employees who are on duty at the same 

time.’’

Section 146.32, ‘‘Participation,’’ states 

that participating meat-type chicken 

slaughter plants shall comply with 

applicable general provisions of subpart 

A of part 146 and the special provisions 

of subpart C. However, the section 

exempts participating meat-type 

chicken slaughter plants that slaughter 

fewer than 200,000 meat-type chickens 

in an operating week from the special 

provisions of subpart C. 

Section 146.33, ‘‘Terminology and 

classification; meat-type chicken 

slaughter plants,’’ sets out the active 

surveillance requirements for 

participating commercial meat-type 

chicken slaughter plants. The active 

surveillance requirements in § 146.33 

are intended for meat-type chicken 

slaughter plants that slaughter 200,000 

or more meat-type chickens in an 

operating week. However, smaller meattype chicken slaughter plants are 

eligible to participate in the NPIP. We 

believe that diagnostic surveillance in 

accordance with § 146.14 and 

inspections in accordance with § 146.11, 

which are required in the general 

provisions in subpart A, are adequate to 

determine whether H5/H7 LPAI is 

present on such premises. 

The indemnity provisions we are 

establishing in part 56 provide authority 

to pay indemnity for only 25 percent of 

costs to owners of meat-type chicken 

flocks that participate in the Plan 

through a meat-type chicken slaughter 

plant that slaughters 200,000 or more 

meat-type chickens in an operating 

week and that does not participate in 

the active surveillance described in 

§ 146.33(a). As discussed earlier, the 

standard of slaughtering 200,000 or 

more meat-type chickens in an 

operating week is consistent with Watt 

Publishing Companies’ listing of 

commercial meat-type chicken slaughter 

operations and will concentrate 

resources on testing meat-type chickens 

associated with slaughter plants that 

slaughter a relatively high percentage of 

the total U.S. population of commercial 

meat-type chickens. 

Under paragraph (a) of § 146.33, a 

meat-type chicken slaughter plant is 

eligible for the U.S. H5/H7 Avian 

Influenza Monitored designation if it 

meets one of the following 

requirements: 

• A minimum of 11 birds per shift are 

tested negative for antibodies to H5/H7 

LPAI at slaughter. However, with the 

approval of the Official State Agency, 

fewer than 11 birds per shift may be 

tested for any given shift if the total 

number of birds tested during the 


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operating month is equivalent to testing 

11 birds per shift; 

• The plant accepts only meat-type 

chickens from flocks where a minimum 

of 11 birds have been tested negative for 

antibodies to H5/H7 LPAI no more than 

21 days prior to slaughter; or 

• The plant has an ongoing active and 

diagnostic surveillance program for H5/ 

H7 LPAI in which the number of birds 

tested is equivalent to the number 

required by one of the first two options. 

Such a program must be approved by 

the Official State Agency and APHIS. 

Both of the first two of these testing 

requirements are sufficient to establish 

the commercial meat-type chicken 

slaughter plants as free of H5/H7 LPAI 

at a 95 percent confidence interval for 

a 25 percent infection rate, and both are 

consistent with the new OIE guidelines 

for surveillance of NAI that were 

discussed earlier in this document. 

Allowing participating slaughter plants 

to choose between them will give the 

slaughter plants some flexibility. The 

first option provides for occasional 

variances below 11 birds per shift 

because occasional sample collection 

problems are likely to arise at slaughter 

plants; as long as the Official State 

Agency approves, testing more birds 

during other shifts so that the number 

of birds tested per month is equivalent 

to testing 11 birds per shift will provide 

adequate surveillance. 

Any ongoing active and diagnostic 

surveillance program that is approved 

by the Official State Agency and APHIS 

would have to test a number of birds 

equivalent to the other two options, but 

this by itself would not be sufficient to 

secure approval for the program; the 

Official State Agency and APHIS would 

have to agree that the detailed testing 

plan for the alternate program is 

sufficient to establish a level of 

confidence for the detection of AI that 

is equivalent to that of the other two 

options. Allowing participating 

slaughter plants to develop an 

alternative ongoing active and 

diagnostic surveillance program of 

equivalent efficacy will give the plants 

some additional flexibility. 

Subpart D—Special Provisions for MeatType Turkeys 

Subpart D (§§ 146.41 through 146.44) 

of part 146 provides special provisions 

of the Plan with which participating 

producers and States must comply in 

order to be eligible for the U.S. H5/H7 

Avian Influenza Monitored 

classification. 

Section 146.41, ‘‘Definitions,’’ sets out 

a definition of meat-type turkey that 

reads: ‘‘A domesticated turkey grown for 

the primary purpose of producing 

meat.’’ It also sets out a definition of 

meat-type turkey slaughter plant that 

reads: ‘‘A meat-type turkey slaughter 

plant that is federally inspected or 

under State inspection that the Food 

Safety Inspection Service has 

recognized as equivalent to federal 

inspection.’’

Section 146.42, ‘‘Participation,’’ states 

that participating meat-type turkey 

slaughter plants shall comply with 

applicable general provisions of subpart 

A of part 146 and the special provisions 

of subpart D. However, the section 

exempts meat-type turkey slaughter 

plants that slaughter fewer than 2 

million meat-type turkeys in a 12-month 

period from the special provisions of 

subpart D. 

Section 146.43, ‘‘Terminology and 

classification; meat-type turkey 

slaughter plants,’’ sets out the active 

surveillance requirements for 

participating commercial meat-type 

turkey slaughter plants. The active 

surveillance requirements in § 146.43 

are intended for meat-type turkey 

slaughter plants that slaughter 2 million 

or more meat-type turkeys in a 12- 

month period. However, smaller meattype turkey slaughter plants are eligible 

to participate in the NPIP. We believe 

that diagnostic surveillance in 

accordance with § 146.14 and 

inspections in accordance with § 146.11, 

which are required in the general 

provisions in subpart A, are adequate to 

determine whether H5/H7 LPAI is 

present on such premises. 

The indemnity provisions we are 

establishing in part 56 provide authority 

to pay indemnity for only 25 percent of 

costs to owners of meat-type turkey 

flocks that participate in the Plan 

through a meat-type turkey slaughter 

plant that slaughters 2 million or more 

meat-type turkeys in a 12-month period 

and that does not participate in the 

active surveillance described in 

§ 146.33(a). As discussed earlier, the 

standard of slaughtering 2 million or 

more meat-type turkeys in a 12-month 

period is consistent with Watt 

Publishing Companies’ listing of 

commercial meat-type turkey slaughter 

operations and will concentrate 

resources on testing meat-type turkeys 

associated with slaughter plants that 

slaughter a relatively high percentage of 

the total U.S. population of commercial 

meat-type turkeys. 

Under paragraph (a)(1) of § 146.43, a 

meat-type turkey slaughter plant is 

eligible for the U.S. H5/H7 Avian 

Influenza Monitored designation if it 

meets one of the following 

requirements: 

• It is a meat-type turkey slaughter 

plant at which a sample of a minimum 

of 60 birds has tested negative each 

month for antibodies to type A avian 

influenza virus. Positive samples shall 

be further tested by an authorized 

laboratory using the hemagglutination 

inhibition test to detect antibodies to the 

hemagglutinin subtypes H5 and H7 

when more than 4 months of age and 

prior to the onset of production. It is 

recommended that samples be collected 

from flocks over 10 weeks of age with 

respiratory signs such as coughing, 

sneezing, snicking, sinusitis, or rales; 

depression; or decreases in food or 

water intake; or 

• The plant has an ongoing active and 

diagnostic surveillance program for H5/ 

H7 LPAI in which the number of birds 

tested is equivalent to the number 

required by the option directly above. 

Such a program must be approved by 

the Official State Agency and APHIS. 

Under the first testing requirement, 

turkeys may be tested either on the flock 

level or at the slaughter plant; existing 

State LPAI control programs, which may 

be used as a basis for meeting the 

requirements of this program, typically 

require testing in one location or the 

other. If turkeys are tested at the 

slaughter plant, it may be more difficult 

to determine whether they have clinical 

symptoms that can indicate the 

presence of AI, although it is still 

possible. To accommodate testing at 

both locations, we have indicated that 

turkeys with clinical symptoms should 

be tested if possible; however, if no 

turkeys can be determined to have 

clinical symptoms, any turkeys may be 

tested to fulfill the requirement. 

The first testing requirement is 

sufficient to establish the meat-type 

turkey slaughter plants as free of H5/H7 

LPAI at a 95 percent confidence interval 

for a 25 percent infection rate and is 

consistent with the new OIE guidelines 

for surveillance of NAI that were 

discussed earlier in this document. In 

addition, the recommendation that 

turkeys with clinical symptoms, rather 

than turkeys selected at random, be 

tested for H5/H7 LPAI could further 

improve the results of the testing. 

Any ongoing active and diagnostic 

surveillance program that is approved 

by the Official State Agency and APHIS 

would have to test a number of birds 

equivalent to the first requirement, but 

this by itself would not be sufficient to 

secure approval for the program; the 

Official State Agency and APHIS would 

have to agree that the detailed testing 

plan for the alternate program is 

sufficient to establish a level of 

confidence for the detection of AI that 

is equivalent to that of the first 

requirement. Allowing participating 

slaughter plants to develop an 


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alternative ongoing active and 

diagnostic surveillance program of 

equivalent efficacy will give the plants 

some flexibility. 

Section 146.44, ‘‘Terminology and 

classification; States,’’ sets out the 

requirements for States to be eligible for 

the U.S. H5/H7 Avian Influenza 

Monitored State, Turkeys classification. 

These requirements are contained in 

paragraph (a)(1) of § 146.44. The 

requirements are: 

• All meat-type turkey slaughter 

plants within the State that are not 

exempt from the special provisions of 

subpart D under § 146.42 are classified 

as U.S. H5/H7 Avian Influenza 

Monitored under § 146.43(a); 

• All turkey breeding flocks in 

production within the State are 

classified as U.S. H5/H7 Avian 

Influenza Clean under § 145.43(g); 

• All persons performing poultry 

disease diagnostic service within the 

State must be required to report to the 

Official State Agency, within 24 hours, 

the source of all meat-type turkey 

specimens that were deemed positive on 

an official test for AI, as designated in 

§ 146.13(a); 

• All meat-type turkey specimens that 

were deemed positive on an official test 

for AI, as designated in § 146.13(a), must 

be sent to an authorized laboratory for 

subtyping; and 

• All meat-type turkey flocks within 

the State that are found to be infected 

with the H5/H7 subtypes of avian 

influenza must be quarantined, in 

accordance with an initial State 

response and containment plan as 

described in part 56 and under the 

supervision of the Official State Agency. 

APHIS may revoke this classification 

if: 

• There is a discontinuation of any of 

the above conditions; 

• Repeated outbreaks of the H5/H7 

subtypes of avian influenza occur in 

meat-type turkey flocks; or 

• An infection spreads from the 

originating premises. 

The conditions under which APHIS 

will revoke a classification are identical 

to those in § 146.24(b) for revoking the 

classification of U.S. H5/H7 Avian 

Influenza Monitored State, Layers. 

It should be noted that participation 

in the U.S. H5/H7 Avian Influenza 

Monitored State, Turkeys program is not 

a precondition for State participation in 

the Plan; rather, it is an optional 

program that States may pursue if an 

Official State Agency and the meat-type 

turkey slaughter plants in that State 

wish to use the designation of U.S. H5/ 

H7 Avian Influenza Monitored State, 

Turkeys. 

Emergency Response and Compensation 

Provisions in 9 CFR Part 56 

Definitions 

Section 56.1 sets out definitions for 

the terms Animal and Plant Health 

Inspection Service (APHIS), 

classification, commercial meat-type 

flock, commercial table-egg layer flock, 

commercial table-egg layer premises, 

Department, domesticated, H5/H7 low 

pathogenic avian influenza (LPAI), H5/ 

H7 LPAI virus infection (infected), meattype chicken, meat-type turkey, Official 

State Agency, State, table-egg layer, and 

United States that are identical to the 

definitions of those terms in part 146. 

The definition of Administrator in 

part 56 reads: ‘‘The Administrator, 

Animal and Plant Health Inspection 

Service, or any other employee of the 

Animal and Plant Health Inspection 

Service delegated to act in the 

Administrator’s stead.’’ The definition 

of Administrator in part 146 does not 

limit the people who may be delegated 

to act in the Administrator’s stead to 

employees of APHIS. We have included 

this limitation in part 56 because the 

Administrator is authorized to pay 

compensation under § 56.3, and APHIS 

must have the final authority to make a 

decision on whether to pay 

compensation. The definition of Plan in 

part 56 refers to the provisions of the 

NPIP in parts 145, 146, and 147. 

The definition of poultry in part 56 

reads: ‘‘Domesticated fowl, including 

chickens, turkeys, ostriches, emus, 

rheas, cassowaries, waterfowl, and game 

birds, except doves and pigeons, which 

are bred for the primary purpose of 

producing eggs or meat.’’ For reasons 

discussed earlier in this document, this 

definition includes poultry for which 

NPIP AI control programs do not exist 

in parts 145 or 146. 

The following definitions are unique 

to part 56: 

Breeding flock. A flock that is 

composed of stock that has been 

developed for commercial egg or meat 

production and is maintained for the 

principal purpose of producing chicks 

for the ultimate production of eggs or 

meat for human consumption. (Section 

145.1 includes definitions of primary 

breeding flock and multiplier breeding 

flock; for the purposes of determining 

eligibility for compensation, it is not 

necessary to make such a distinction, 

although whether a bird is a member of 

a primary or multiplier breeding flock 

would be taken into account when 

determining its fair market value 

through appraisal.) 

Cooperating State Agency. Any State 

authority recognized by the Department 

to cooperate in the administration of the 

provisions of this part 56. This may 

include the State animal health 

authority or the Official State Agency. 

We are including this definition because 

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 would 

cooperate with the State animal health 

authority to eradicate an H5/H7 LPAI 

outbreak and pay indemnity under part 

56. 

Flock plan. A written flock 

management agreement developed by 

APHIS and the Official State Agency 

with input from the flock owner and 

other affected parties. Under this 

definition, 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. (This definition is 

adapted from the definition of herd plan 

in the chronic wasting disease control 

and indemnity regulations in 9 CFR part 

55.) 

H5/H7 LPAI exposed. At risk of 

developing H5/H7 LPAI because of 

association with birds or poultry 

infected with H5/H7 LPAI, excrement 

from birds or poultry infected with H5/ 

H7 LPAI, or other material touched by 

birds or poultry infected with H5/H7 

LPAI, or because there is reason to 

believe that association has occurred 

with H5/H7 LPAI or vectors of H5/H7 

LPAI, as determined by the Cooperating 

State Agency and confirmed by APHIS. 

We are requiring that the 

determination that poultry are H5/H7 

LPAI exposed be made by the 

Cooperating State Agency in order to be 

consistent with the other provisions of 

the NPIP, including the new provisions 

for commercial poultry, which require 

State Inspectors and Authorized Agents 

designated by the Official State Agency 

to collect and test samples. (As noted 

earlier, eradication efforts for poultry 

not included in the NPIP could be 

conducted in cooperation with the State 

animal health authority.) However, 

since the final determination on 

whether to pay indemnity for birds 

destroyed due to H5/H7 LPAI will be 


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made by the APHIS Administrator, we 

are requiring that this determination be 

confirmed by APHIS. 

Mortgage. Any mortgage, lien, or other 

security or beneficial interest held by 

any person other than the one claiming 

indemnity for the destruction of poultry 

or eggs due to H5/H7 LPAI. 

Official appraiser (APHIS official 

appraiser, State official appraiser). A 

person authorized by APHIS to appraise 

poultry for the purposes of this part. A 

State official appraiser is selected by a 

State and authorized by APHIS. 

Secretary. The Secretary of the United 

States Department of Agriculture, or any 

officer or employee of the Department 

delegated to act in the Secretary’s stead. 

Cooperation With States 

Section 56.2 states that the 

Administrator of APHIS has been 

delegated the authority to cooperate 

with Cooperating State Agencies in the 

eradication of LPAI. The section 

provides that cooperation may include, 

but is not necessarily limited to, the 

following activities: 

• Payment to Cooperating State 

Agencies for surveillance and 

monitoring associated with poultry that 

have been infected with or exposed to 

H5/H7 LPAI; 

• Transfer of vaccine for H5/H7 LPAI 

to Cooperating State Agencies, if 

provided for in the initial State response 

and containment plan developed by the 

Official State Agency and approved by 

APHIS under § 56.10; and 

• Payment for vaccine administration 

by Cooperating State Agencies, if 

provided for in the initial State response 

and containment plan. 

APHIS is authorized to transfer 

vaccine for disease control purposes, 

but current regulations do not provide 

for payment of compensation to 

Cooperating State Agencies for their use 

of vaccine. However, any costs 

Cooperating State Agencies incur in 

administering the transferred vaccine, 

such as labor on the part of Cooperating 

State Agency employees to give the 

vaccine to poultry, will be eligible for 

payment by APHIS. 

Paragraph (b) of this section sets out 

conditions for payment and vaccine 

transfer under § 56.2. Paragraph (b)(1) 

requires that any payment made to 

Cooperating State Agencies for 

surveillance, monitoring, and vaccine 

administration after detection of H5/H7 

LPAI be made through a cooperative 

agreement between the Cooperating 

State Agency and APHIS. It further 

states that the payment for which the 

Cooperating State Agency is eligible will 

be determined in the cooperative 

agreement. 

Paragraph (b)(1)(i) provides that, for 

any State that participates in the 

diagnostic surveillance program for H5/ 

H7 LPAI in part 146 and has an initial 

State response and containment plan for 

H5/H7 LPAI that is approved by APHIS, 

the cooperative agreement will provide 

that the Cooperating State Agency is 

eligible for payment of 100 percent of 

the costs of surveillance and monitoring 

and 100 percent of the costs of vaccine 

administration, as determined in the 

cooperative agreement. Paragraph 

(b)(1)(ii) provides that, for States that do 

not meet those criteria, the cooperative 

agreement will provide that the 

Cooperating State Agency is eligible for 

payment of 25 percent of the costs of 

surveillance and monitoring and 25 

percent of the costs of vaccine 

administration, as determined in the 

cooperative agreement. 

The reasons why we believe 100 

percent payment for eligible costs is 

appropriate for participating States are 

discussed in detail earlier in this 

document under the heading 

‘‘Differences Between This Approach 

and the Approach Used in Virginia and 

Texas in 2002.’’ We are providing 25 

percent of eligible costs for 

nonparticipating States in order to 

provide an additional incentive for 

States to participate while continuing to 

provide some relief for costs associated 

with outbreaks of H5/H7 LPAI. 

Paragraph (b)(2) provides that transfer 

of vaccine must be accomplished 

through a cooperative agreement 

between the Cooperating State Agency 

and APHIS. 

Paragraph (c) of this section states that 

States will be responsible for making the 

determination to request Federal 

assistance in the event of an outbreak of 

H5/H7 LPAI. This provision is also 

included in § 146.2, and is discussed in 

more detail under the heading 

‘‘Administration’’ earlier in this 

document; we have included it in § 56.2 

to further indicate that it is a State 

decision to invoke the regulations in 

part 56. 

Payment of Indemnity 

Section 56.3 sets out the costs for 

which indemnity may be paid under the 

indemnity program for H5/H7 LPAI and 

the percentage of those costs that are 

eligible for indemnity. 

Paragraph (a) of this section sets out 

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 

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. 

Paragraph (b) of § 56.3 sets out the 

percentage of these costs for which the 

Administrator is authorized to pay 

indemnity for participants and 

nonparticipants in the voluntary AI 

control programs in 9 CFR parts 145 and 

146. Under this paragraph, the 

Administrator is authorized to pay 

indemnity for 100 percent of eligible 

costs related to infected or exposed 

poultry, unless the poultry meet any of 

the conditions listed below. If the 

poultry meet any of those conditions, 

the Administrator is authorized to pay 

indemnity for only 25 percent of eligible 

costs: 

• The poultry are breeding table egglayers, meat-type chickens, or meat-type 

turkeys from a flock that participates in 

at least one disease control program in 

the Plan for breeding poultry flocks in 

9 CFR part 145 but does not participate 

in the Plan AI control program for table 

egg-layer, meat-type chicken, or meattype turkey breeding flocks; 

• The poultry are commercial tableegg layers from a premises that has 

75,000 or more birds and that does not 

participate in the U.S. H5/H7 Avian 

Influenza Monitored program for 

commercial table-egg layer flocks 

described earlier in this document; 

• The poultry are commercial meattype chickens that are associated with a 

slaughter plant that slaughters 200,000 

or more meat-type chickens per 

operating week and that does not 

participate in the U.S. H5/H7 Avian 

Influenza Monitored program for 

commercial meat-type chicken slaughter 

plants described earlier in this 

document; 

• The poultry are commercial meattype turkeys that are associated with a 

slaughter plant that slaughters 2 million 

or more meat-type turkeys in a 12- 

month period and that does not 

participate in the U.S. H5/H7 Avian 

Influenza Monitored program for 

commercial meat-type turkey slaughter 

plants described earlier in this 

document; or 

• The infected or exposed poultry are 

associated with a flock or slaughter 

plant that participates in the relevant 

Plan AI control program, but the State 


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8A more detailed description of the process we 

would use to appraise commercial poultry can be 

found in the economic analysis prepared for this 

interim rule. For information on how to obtain this 

analysis, see the section headed ‘‘Executive Order 

12866 and Regulatory Flexibility Act’’ later in this 

document. 

in which they participate does not 

participate in the NPIP diagnostic 

surveillance program for H5/H7 LPAI, 

as described in § 146.14, or does not 

have an initial State response and 

containment plan for H5/H7 LPAI that 

is approved by APHIS, as described in 

§ 56.10. However, if the poultry 

participate in the Plan with another 

State that does participate in the 

National Poultry Improvement Plan 

diagnostic surveillance program for H5/ 

H7 LPAI, as described in § 146.14, and 

has an initial State response and 

containment plan for H5/H7 LPAI that 

is approved by APHIS, they would be 

eligible for 100 percent indemnity. 

The reasons why we believe 100 

percent indemnity for eligible costs is 

appropriate for most poultry are 

discussed in detail earlier in this 

document under the heading 

‘‘Differences Between This Approach 

and the Approach Used in Virginia and 

Texas in 2002.’’ We are providing the 

authority to pay 25 percent indemnity 

for eligible costs for nonparticipants in 

order to provide an additional incentive 

for owners of commercial enterprises 

and owners of breeding poultry that 

participate in the Plan to participate in 

the AI surveillance programs, while 

continuing to provide some relief for 

costs associated with outbreaks of H5/ 

H7 LPAI. 

Under paragraph (b) of § 56.3, tableegg layer flocks and meat-type chicken 

and meat-type turkey slaughter plants 

that are smaller than the size standards 

in part 146 are always eligible to receive 

indemnity for 100 percent of the costs 

listed in paragraph (a). We are not 

providing owners of those smaller flocks 

and slaughter plants with an incentive 

to participate in an active surveillance 

program because these programs 

described in part 146 are designed for 

large commercial flocks and slaughter 

plants. (Owners of smaller flocks and 

slaughter plants may participate in the 

Plan without participating in the active 

surveillance programs and thus receive 

the Plan seal of approval to use as a 

marketing tool.) 

As discussed earlier in this document, 

many States conduct AI surveillance 

programs, some of which are designed 

for table-egg layer flocks and meat-type 

chicken and meat-type turkey slaughter 

plants that are smaller than the size 

standards in paragraph (b), as well as for 

meat-type poultry that do not have an 

association with a slaughter plant and 

for other types of poultry. These 

programs may have testing requirements 

that are equivalent to those in the active 

surveillance programs in part 146 if 

those testing requirements are sufficient 

to detect a 25 percent or greater 

prevalence of H5/H7 LPAI at a 

confidence interval of 95 percent or 

greater. 

Although we have provided in this 

interim rule that all poultry associated 

with table-egg layer flocks and meattype chicken and meat-type turkey 

slaughter plants that are smaller than 

these size standards and from flocks of 

other types of poultry will be eligible to 

receive 100 percent indemnity, it may 

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 could encourage 

owners of smaller flocks to participate 

in the State AI testing programs 

designed for those flocks. For example, 

we could add provisions to the 

regulations specifying that if infected or 

exposed poultry are eligible to 

participate in an active surveillance 

program whose testing requirements 

have been recognized by APHIS as 

equivalent to the testing requirements 

for the H5/H7 LPAI surveillance 

programs in part 146, but do not 

participate in that program, their owner 

would be eligible to receive indemnity 

for less than 100 percent of costs related 

to an H5/H7 LPAI outbreak. We invite 

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. 

Paragraph (c) of this section indicates 

that if the recipient of indemnity for any 

of the activities listed in paragraph (a) 

also receives payment for any of those 

activities from a State or from other 

sources, the indemnity provided under 

9 CFR part 56 will be reduced by the 

total amount of payment received from 

the State or other sources. This 

provision ensures that recipients of 

indemnity will not receive payment 

twice for the same loss. 

Determination of Indemnity Amounts 

Section 56.4 sets out requirements 

related to the determination of the 

amount of indemnity that may be paid 

with regard to each category of cost for 

which indemnity may be paid under 

§ 56.3. These include provisions for the 

appraisal and destruction of poultry 

eligible for indemnity; provisions for the 

appraisal of eggs destroyed during 

testing for H5/H7 LPAI during an 

outbreak of H5/H7 LPAI; and provisions 

for providing evidence of actual costs 

for cleaning and disinfection and 

undertaking cleaning and disinfection 

under a compliance agreement, 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, indemnity for the 

materials to be destroyed and disposed. 

Paragraph (a)(1) of this section states 

that indemnity for poultry infected with 

or exposed to H5/H7 LPAI and subject 

to destruction will be based on the fair 

market value of the poultry, as 

determined by an appraisal. Poultry 

infected with or exposed to H5/H7 LPAI 

that are removed by APHIS or a 

Cooperating State Agency from a flock 

for testing will be appraised by an 

APHIS official appraiser and a State 

official appraiser jointly, or, if APHIS 

and State authorities agree, by either an 

APHIS official appraiser or a State 

official appraiser alone. The use of 

multiple appraisers will provide 

maximum assurance that an appropriate 

fair market value will be determined for 

the poultry subject to destruction, while 

the provision that allows appraisers to 

act singly upon agreement of APHIS and 

State authorities will ensure that an 

adequate number of appraisers are 

available for fast-moving outbreaks. 

Appraisals for commercial poultry 

differ somewhat from appraisals for 

other livestock. In a typical livestock 

appraisal, an animal’s value is 

determined by finding sale prices for 

comparable animals. This method is 

unworkable for commercial poultry, 

because the poultry are not sold at 

market but rather are owned by the 

same entity throughout the production 

process; the first price data available for 

poultry are often wholesale prices for 

carcasses or eggs. Therefore, APHIS 

economists have developed means to 

determine the fair market value of 

commercial poultry at various stages of 

production by examining the costs 

involved in the production of the 

poultry and the wholesale prices of the 

resulting carcasses or eggs. These means 

have been used to determine 

compensation in poultry disease 

eradication efforts such as the effort to 

eradicate H5/H7 LPAI in Virginia and 

Texas in 2002.8 If we use these means 


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to value commercial poultry in an H5/ 

H7 LPAI outbreak, we would also 

require State official appraisers to use 

them whenever applicable. 

APHIS would appraise poultry 

outside of this framework if 

circumstances warrant. For example, 

breeding poultry with exceptional 

genetics might need to be appraised 

independently in order to arrive at their 

fair market value. For poultry sold in 

the live bird marketing system, market 

price data might be available to provide 

an appraisal. 

Paragraph (a)(1) further requires that 

appraisals of poultry must be reported 

on forms furnished by APHIS and 

signed by the appraisers and that the 

appraisals must be signed by the owners 

of the poultry to indicate agreement 

with the appraisal amount. Appraisals 

of poultry must be signed by the owners 

of the poultry prior to the destruction of 

the poultry, unless the owners, APHIS, 

and the Cooperating State Agency agree 

that the poultry may be destroyed 

immediately. Reports of appraisals must 

show the number of birds and the value 

per head. 

Paragraph (a)(2) of this section states 

that indemnity for disposal of poultry 

infected with or exposed to H5/H7 LPAI 

will be based on receipts or other 

documentation maintained by the 

claimant verifying expenses for disposal 

activities authorized by part 56. Under 

this paragraph, any disposal of poultry 

infected with or exposed to H5/H7 LPAI 

for which compensation is requested 

must be performed under a compliance 

agreement between the claimant, the 

Cooperating State Agency, and APHIS. 

APHIS will review claims for 

compensation for disposal 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. The 

compliance agreement and the APHIS 

review will help to ensure that APHIS 

does not pay disposal costs in excess of 

what is necessary; the fact that the 

disposal requirements are based on the 

guidelines in § 56.5 and the initial State 

response and containment plan means 

that they will ensure that cleaning and 

disinfection is conducted properly 

while taking into account local 

conditions. If disposal is performed by 

the Cooperating State Agency, 

paragraph (a)(2) provides that APHIS 

will indemnify the Cooperating State 

Agency for disposal under a cooperative 

agreement. 

Paragraph (a)(3) requires 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, as described in § 56.10. As 

discussed earlier in this document, the 

initial State response and containment 

plan is a requirement for any State that 

wishes to participate in a cooperative 

agreement with APHIS and be eligible to 

receive 100 percent of its costs and 

ensure that poultry owners in that State 

are eligible to receive 100 percent 

indemnification. 

Paragraph (b) of this section states 

that indemnity for eggs destroyed 

during an outbreak for testing for H5/H7 

LPAI will be based on the fair market 

value of the eggs, as determined by an 

appraisal. Eggs destroyed for testing for 

H5/H7 LPAI will be appraised by an 

APHIS official appraiser and a State 

official appraiser jointly, or, if APHIS 

and State authorities agree, by either an 

APHIS official appraiser or a State 

official appraiser alone. Appraisals of 

eggs must be reported on forms 

furnished by APHIS and signed by the 

appraisers and must be signed by the 

owners of the eggs to indicate agreement 

with the appraisal amount. Appraisals 

of eggs must be signed by the owners of 

the eggs prior to the destruction of the 

poultry, unless the owners, APHIS, and 

the Cooperating State Agency agree that 

the eggs may be destroyed immediately. 

Reports of appraisals must show the 

number of eggs and the value per egg. 

It is not necessary to include disposal 

requirements for eggs destroyed during 

testing because testing will in all cases 

be conducted in sanitary conditions. 

Paragraph (c)(1) of this section states 

that indemnity for cleaning and 

disinfection of premises, conveyances, 

and materials that came into contact 

with poultry that are infected with or 

exposed to H5/H7 LPAI will be based on 

receipts or other documentation 

maintained by the claimant verifying 

expenditures for cleaning and 

disinfection activities authorized by part 

56. 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. 

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. The 

compliance agreement and the APHIS 

review will help to ensure that APHIS 

does not pay cleaning and disinfection 

costs in excess of what is necessary; the 

fact that the cleaning and disinfection 

requirements are based on the 

provisions of § 56.5 and the initial State 

response and containment plan means 

that they will ensure that cleaning and 

disinfection is conducted properly 

while taking into account local 

conditions. 

Paragraph (c)(2) of this section states 

that 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, indemnity 

for the destruction of the materials will 

be based on the fair market value of 

those materials, as determined by an 

appraisal. Materials will be appraised by 

an APHIS official appraiser and a State 

official appraiser jointly, or, if APHIS 

and State authorities agree, by either an 

APHIS official appraiser or a State 

official appraiser alone. Indemnity for 

disposal of the materials will be based 

on receipts or other documentation 

maintained by the claimant verifying 

expenditures for disposal activities 

authorized by part 56. Any disposal of 

materials for which indemnity is 

requested must be performed under a 

compliance agreement between the 

claimant, the Cooperating State Agency, 

and APHIS. APHIS will review claims 

for compensation for disposal 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. 

Destruction and Disposal of Poultry and 

Cleaning and Disinfection of Premises, 

Conveyances, and Materials 

Section 56.5 sets out requirements for 

the destruction and disposal of poultry, 

the cleaning and disinfection of 

premises, conveyances, and materials, 

and the destruction and disposal of 

materials. 

Paragraph (a) of § 56.5 states that 

poultry that are infected with or 

exposed to H5/H7 LPAI may be required 

to be destroyed at the discretion of the 

Cooperating State Agency and APHIS 

and in accordance with the initial State 

response and containment plan. The 

Cooperating State Agency and APHIS 

will select a method to use for the 

destruction of such poultry based on the 

following factors: 

• 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 


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• The speed with which destruction 

must be conducted. 

This will ensure that the Cooperating 

State Agency and APHIS take into 

consideration all relevant issues when 

selecting an appropriate method for 

destruction of poultry. 

Paragraph (b) of § 56.5 states that 

carcasses of poultry that have died from 

H5/H7 LPAI infection or poultry that 

have been humanely slaughtered to 

fulfill depopulation requirements must 

be disposed of promptly and efficiently 

in accordance with the initial State 

response and containment plan to 

prevent the spread of H5/H7 LPAI 

infection. Disposal methods will be 

selected by the Cooperating State 

Agency and APHIS and may include 

one or more of the following: Burial, 

incineration, composting, or rendering. 

Paragraph (b) additionally states that, 

regardless of the disposal method used, 

strict biosecurity procedures must be 

implemented and enforced for all 

personnel and vehicular movement into 

and out of the area in accordance with 

the initial State response and 

containment plan to prevent 

dissemination of the H5/H7 LPAI virus. 

Paragraph (c) of § 56.5 addresses 

controlled marketing. Under § 56.5(c), at 

the discretion of the Cooperating State 

Agency and APHIS, poultry that are 

infected with or exposed to H5/H7 LPAI 

may be allowed to move for controlled 

marketing in accordance with the initial 

State response and containment plan 

and 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 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. Although poultry 

are likely to be free of the virus 21 days 

after the acute phase of the infection has 

been concluded, they are not certain to 

be free of it; the additional test helps 

reduce the risk that controlled 

marketing could spread H5/H7 LPAI. 

This paragraph allows controlled 

marketing for both flocks that have been 

infected with and flocks that have been 

exposed to H5/H7 LPAI. As noted 

previously in this document, LPAI 

infection in poultry is typically not 

fatal; if a flock is infected with LPAI, the 

infection will eventually cease, and the 

flock will then test negative for LPAI. In 

addition, LPAI virus is not found in 

poultry products, meaning that products 

from an infected flock can be safely 

marketed. If a State wishes to allow 

controlled marketing of infected flocks, 

the conditions specified in that 

document under which controlled 

marketing would be allowed must be 

approved by APHIS; in addition, any 

controlled marketing must take place 

under the conditions described above, 

which are consistent with the OIE 

guidelines for NAI that were discussed 

earlier in this document. Therefore, we 

believe that controlled marketing of an 

infected flock and its products under 

the conditions described above and in 

accordance with the initial State 

response and containment plan would 

not pose a risk of spreading H5/H7 LPAI 

to uninfected poultry. 

APHIS will not pay claims for 

indemnity for infected or exposed 

poultry that are allowed to move for 

controlled marketing; the regulations in 

part 56 only authorize payment for 

poultry infected with or exposed to H5/ 

H7 LPAI that are destroyed and 

disposed according to the regulations in 

part 56, which means that poultry 

moved for slaughter and sale are 

ineligible for indemnity. 

Paragraph (d) of § 56.5 sets out 

guidelines for performing cleaning and 

disinfection of premises, conveyances, 

and materials. Premises, conveyances, 

and materials that came into contact 

with poultry infected with or exposed to 

H5/H7 LPAI must be cleaned and 

disinfected, except that materials for 

which the cost of cleaning and 

disinfection would exceed the value of 

the materials or for which cleaning and 

disinfection would be impracticable for 

any reason may be destroyed and 

disposed. All cleaning and disinfection 

of premises, conveyances, and materials 

must be performed in accordance with 

the initial State response and 

containment plan. The guidelines in 

paragraph § 56.5(d) will help States 

develop cleaning and disinfection plans. 

The guidelines address preparation for 

cleaning and disinfection, conducting 

the cleaning and disinfection, and 

activities to be performed after cleaning 

and disinfection. Within the cleaning 

and disinfection guidelines, four areas 

are specifically addressed: 

• Disposal of manure, debris, and 

feed; 

• Cleaning of premises and materials; 

• Disinfection of premises and 

materials; and 

• Cleaning and disinfection of 

conveyances. 

The specific, detailed provisions of 

these guidelines can be found in the 

rule portion of this document. 

Paragraph (d) also indicates that, in the 

case of materials for which the cost of 

cleaning and disinfection would exceed 

the value of the materials or for which 

cleaning and disinfection would be 

impracticable for any reason, the 

destruction and disposal of the 

materials must be conducted in 

accordance with the initial State 

response and containment plan 

described in § 56.10. 

Presentation of Claims for Indemnity 

Section 56.6 addresses claims for the 

following costs, which will be paid by 

APHIS should they be approved: 

• The value of poultry to be destroyed 

due to infection with H5/H7 LPAI; 

• The value of eggs to be destroyed 

during testing for H5/H7 LPAI; and 

• The cost of cleaning and 

disinfection of premises, conveyances, 

and materials that came into contact 

with poultry 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 cost of 

destruction and disposal for the 

materials. 

The section requires that claims for 

these costs must be documented on a 

form furnished by APHIS and presented 

to an APHIS employee or the State 

representative authorized to accept the 

claims. 

Mortgage Against Poultry or Eggs 

Section 56.7 requires that when 

poultry or eggs have been destroyed 

under part 56, any claim for indemnity 

be presented on forms furnished by 

APHIS. The owner of the poultry or eggs 

must certify on the forms that the 

poultry or eggs covered are, or are not, 

subject to any mortgage as defined in 

§ 56.1. If the owner states there is a 

mortgage, the owner and each person 

holding a mortgage on the poultry or 

eggs must sign, consenting to the 

payment of indemnity to the person 

specified on the form. 

Conditions for Payment 

As mentioned earlier in this 

document under the heading 

‘‘Differences Between This Approach 

and the Approach Used in Virginia and 

Texas in 2002,’’ this indemnity program 

contains provisions specifically 

ensuring that contract growers, or 

anyone else providing services related 

to the growing and care of the birds, 

receive payment for their services when 

indemnity is provided for birds 

destroyed under their care. Just as in the 

Virginia and Texas outbreaks, we 


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believe it is important to ensure that all 

participants in the poultry industry with 

a stake in the continued health of the 

U.S. poultry stock are compensated for 

costs associated with the eradication of 

outbreaks of H5/H7 LPAI. 

Therefore, § 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 this section, 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. For example, suppose a 

meat-type chicken flock belonging to an 

owner who participated in the Plan is 

destroyed and disposed of under this 

part, and the flock was appraised at 

$1,000. The flock was being grown by a 

contractor with a $500 contract; half of 

the contract’s duration had elapsed. The 

contractor would be eligible to receive 

$250 in indemnity, and the owner 

would be eligible to receive the 

difference, $750. 

For losses resulting from the H5/H7 

LPAI outbreak in Virginia and Texas, 

the Administrator was authorized to pay 

100 percent of the costs contract 

growers incurred and up to 75 percent 

of the total costs poultry owners 

incurred related to destruction and 

disposal of poultry affected by H5/H7 

LPAI. This section does not structure 

indemnity payments in this manner. 

Under paragraph (b) of § 56.8, the 

Administrator is authorized to pay 

contract growers and other parties with 

contractual claims 100 percent of 

eligible costs related to the destruction 

and disposal of poultry infected with or 

exposed to H5/H7 LPAI, and 100 

percent of eligible costs related to the 

destruction of eggs during testing of 

commercial poultry for H5/H7 LPAI 

during outbreaks, unless the producer of 

the poultry or eggs is a commercial 

poultry producer that does not 

participate in the LPAI control program 

or a breeding poultry producer that 

participates in the Plan but not in the AI 

control program. In the latter case, the 

Administrator is authorized to pay 

contract growers and other parties with 

contractual claims 25 percent of eligible 

costs. 

Paragraph (c) of this section explicitly 

states that if indemnity is paid to a 

contractor 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. 

Paragraph (d) of this section provides 

that in the event that determination of 

indemnity to a party with which the 

owner of destroyed poultry or eggs has 

entered into a contract for the growing 

or care of the poultry or eggs as 

described in paragraph (a) is determined 

to be impractical or inappropriate, 

APHIS may use any other method that 

the Administrator deems appropriate to 

make that determination. This provision 

provides APHIS with flexibility in the 

event that the formula described 

previously does not result in an 

appropriate distribution of indemnity. 

Claims Not Allowed 

Section 56.9 states that the 

Department will not allow the following 

claims: 

• Claims arising out of the 

destruction of poultry unless the poultry 

have been appraised as prescribed in 

§ 56.4 and the owners have signed the 

appraisal form indicating agreement 

with the appraisal amount as required 

by § 56.4(a)(1). 

• 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. Persons who do not maintain 

their poultry and premises in 

accordance with this written agreement 

will not be eligible to receive indemnity 

under this part. 

• Claims arising out of the 

destruction of poultry unless the poultry 

have been moved or handled by the 

owner in accordance with an agreement 

for the control and eradication of H5/H7 

LPAI and in accordance with part 56, 

for any progeny of any poultry unless 

the poultry have been moved or handled 

by the owner in accordance with an 

agreement for the control and 

eradication of H5/H7 LPAI and in 

accordance with part 56, or for any 

poultry that become or have become 

infected with or exposed to H5/H7 LPAI 

because of actions not in accordance 

with an agreement for the control and 

eradication of H5/H7 LPAI or a violation 

of part 56. 

These provisions are consistent with 

the relevant provisions of the Animal 

Health Protection Act, which are found 

at 7 U.S.C. 8306(d)(3). 

Initial State Response and Containment 

Plan 

Section 56.10 states that, in order for 

poultry owners within a State to be 

eligible for 100 percent indemnity under 

paragraph § 56.3(b)(1), the State in 

which the poultry owners participate in 

the NPIP must have in place an initial 

State response and containment plan 

that has been approved by APHIS. The 

plan must be developed by the Official 

State Agency and administered by the 

Cooperating State Agency of the 

relevant State. Section 56.10 also sets 

out the elements that this plan must 

include: 

• Provisions for a standing emergency 

disease management committee, regular 

meetings, and exercises, including 

coordination with any tribal 

governments that may be affected; 

• A minimum biosecurity plan 

followed by all poultry producers; 

• Provisions for adequate diagnostic 

resources; 

• Detailed, specific procedures for 

initial handling and investigation of 

suspected cases of H5/H7 LPAI; 

• Detailed, specific procedures for 

reporting test results to APHIS. These 

procedures must be developed after 

appropriate consultation with poultry 

producers in the State and must provide 

for the reporting only of confirmed cases 

of H5/H7 LPAI in accordance with 9 

CFR 146.13; 

• Detailed, strict quarantine measures 

for presumptive and confirmed index 

cases; 

• Provisions for developing flock 

plans for infected and exposed flocks; 

• Detailed plans for disposal of 

infected flocks, including preexisting 

agreements with regulatory agencies and 

detailed plans for carcass disposal, 

disposal sites, and resources for 

conducting disposal, and detailed plans 

for disposal of materials that come into 

contact with poultry infected with or 

exposed to H5/H7 LPAI; 


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• Detailed plans for cleaning and 

disinfection of premises, repopulation, 

and monitoring after repopulation; 

• Provisions for appropriate control/ 

monitoring zones, contact surveys, and 

movement restrictions; 

• Provisions for monitoring activities 

in control zones; 

• If vaccination is considered as an 

option, a written plan for use in place 

with proper controls and provisions for 

APHIS approval of any use of vaccine; 

• Plans for H5/H7 LPAI-negative 

flocks that provide for quarantine, 

testing, and controlled marketing; and 

• Public awareness and education 

programs regarding avian influenza. 

We believe that any State with a plan 

that includes all these elements is fully 

capable of determining whether H5/H7 

LPAI is present in flocks that participate 

in the Plan within that State and taking 

action to respond to any outbreaks of 

H5/H7 LPAI that may occur. A model 

initial State response and containment 

plan is available by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT or on the 

Regulations.gov Web site (see 

ADDRESSES above for instructions for 

accessing Regulations.gov). APHIS plans 

to distribute the model initial State 

response and containment plan as a 

guide to help States develop initial State 

response and containment plans for 

approval by APHIS; the model plan sets 

out what would typically be considered 

to be provisions that would satisfy the 

requirements for an initial State 

response and containment plan in this 

interim rule. We invite public comment 

on the model initial State response and 

containment plan. 

Section 56.10 also provides that if a 

State has U.S. Avian Influenza 

Monitored status under § 146.24(a) or 

§ 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. If a 

State completes the actions required by 

the initial State response and 

containment plan, 90 days will provide 

adequate time to complete the postoutbreak surveillance necessary to 

establish that the State is free of H5/H7 

LPAI. As discussed earlier in this 

document in the context of the special 

provisions for table-egg layers and meattype turkeys, APHIS reserves the right to 

remove U.S. Avian Influenza Monitored 

status from a State entirely if there is a 

discontinuation of any of the conditions 

required to attain that status, if repeated 

outbreaks of the H5/H7 subtypes of 

avian influenza occur in table-egg layer 

or meat-type turkey flocks, or if an 

infection spreads from the originating 

premises in a State. 

Miscellaneous Changes 

The new part 146 is titled ‘‘National 

Poultry Improvement Plan for 

Commercial Poultry.’’ The title of part 

145 has been ‘‘National Poultry 

Improvement Plan.’’ Prior to the 

publication of this interim rule, the only 

poultry included in the Plan (and, thus, 

in part 145) had been breeding poultry. 

To ensure clarity, we are amending the 

title of part 145 to read ‘‘National 

Poultry Improvement Plan for Breeding 

Poultry.’’

Section 147.45 of the auxiliary 

provisions of the NPIP provides that 

each cooperating State is entitled to one 

official delegate at Plan conferences for 

each of the programs prescribed in 

subparts B, C, D, E, and F of 9 CFR part 

145 in which it has one or more 

participants at the time of the Plan 

conference. We are amending this 

section to accommodate the addition of 

the new programs in 9 CFR part 146 by 

stating that each cooperating State is 

also entitled to one official delegate for 

each of the programs prescribed in 

subparts B, C, and D of 9 CFR part 146. 

We are also amending § 147.46(a) by 

providing for the establishment of 

committees to give preliminary 

consideration to the proposed changes 

falling in their respective fields for eggtype commercial chickens, meat-type 

commercial chickens, and meat-type 

commercial turkeys. 

Immediate Action 

We believe that it is necessary to 

establish a voluntary LPAI control 

program and an LPAI indemnity 

program in an interim rule in order to 

proactively address the increasing threat 

of mutation to HPAI posed by outbreaks 

of H5/H7 LPAI, including the H7N2 

LPAI virus present in New York and 

New Jersey, and thus mitigate the 

potential poultry and human health 

threat of an H5/H7 HPAI virus. Under 

these circumstances, the Administrator 

has determined that prior notice and 

opportunity for public comment are 

contrary to the public interest and that 

there is good cause under 5 U.S.C. 553 

for making this action effective less than 

30 days after publication in the Federal 

Register. 

We will consider comments we 

receive during the comment period for 

this interim rule (see DATES above). 

After the comment period closes, we 

will publish another document in the 

Federal Register. The document will 

include a discussion of any comments 

we receive and any amendments we are 

making to the rule. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This rule has been reviewed under 

Executive Order 12866. The 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. 

We have prepared an economic 

analysis for this rule. The economic 

analysis provides a cost-benefit analysis, 

as required by Executive Order 12866, 

and an initial regulatory flexibility 

analysis that examines the potential 

economic effects of this interim rule on 

small entities, as required by the 

Regulatory Flexibility Act. The 

economic analysis is summarized 

below. Copies of the full analysis are 

available by contacting the person listed 

under FOR FURTHER INFORMATION

CONTACT or on the Regulations.gov Web 

site (see ADDRESSES above for 

instructions for accessing 

Regulations.gov). 

Under the interim rule, the U.S. 

Department of Agriculture (USDA) will 

compensate both owners and growers 

for losses arising from depopulation of 

birds affected with H5/H7 LPAI. 

In general, benefits of depopulating 

birds affected with H5/H7 LPAI come 

from containing the spread of the 

disease. Benefits of containing disease 

spread fall into three general categories: 

(1) Avoided owner and grower losses 

from disease morbidity and mortality; 

(2) avoided consumer price increases 

resulting from decreased supplies; and 

(3) avoided trade bans (State, regional, 

or national) that result when trading 

partners close markets during or after a 

disease outbreak. 

The groups who enjoy the primary 

benefit of a disease eradication 

campaign are consumers and those 

owners/growers whose flocks have 

remained healthy. The group who bears 

the primary burden of the eradication 

effort is the owners and/or growers 

whose flocks are depopulated. 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 are derived 

from avoiding costs incurred when an 

outbreak occurs. Evidence of types of 

benefits gained from control of avian 

influenza is found in the USDAEconomic Research Service study of a 

1983–84 outbreak (summarized in the 

full economic analysis). Also, the 2002 

outbreak in Virginia provides evidence 

of the costs incurred due to an avian 

influenza incident. This evidence shows 


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that the costs of an avian influenza 

outbreak can be substantial. 

To the extent that the interim 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 avoiding LPAI outbreaks and 

losses should an outbreak occur, exceed 

the cost to producers and States of 

participating in disease prevention 

efforts. Under the rule, producers would 

be required to keep flocks and facilities 

clean, slaughter plants would be 

required to conduct sampling, and 

States would be required to conduct 

annual inspections and develop 

response and containment plans. As the 

Federal part of the control program, 

APHIS would provide full indemnity for 

specific costs to participating producers 

and States should an outbreak occur. 

Related to, but separate from, this LPAI 

rule, APHIS received about $14 million 

in fiscal year 2006 appropriations for 

LPAI efforts, including almost $2 

million in NPIP cooperative agreements 

to 24 States for ongoing surveillance. 

Executive Order 12372 

This program/activity is listed in the 

Catalog of Federal Domestic Assistance 

under No. 10.025 and is subject to 

Executive Order 12372, which requires 

intergovernmental consultation with 

State and local officials. (See 7 CFR part 

3015, subpart V.) 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule: (1) Preempts all State 

and local laws and regulations that are 

in conflict with this rule; (2) has no 

retroactive effect; and (3) does not 

require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

Paperwork Reduction Act 

In accordance with section 3507(j) of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.), the information 

collection and recordkeeping 

requirements included in this interim 

rule have been submitted for emergency 

approval to the Office of Management 

and Budget. 

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 proposed rule, please contact 

Mrs. Celeste Sickles, APHIS’

Information Collection Coordinator, at 

(301) 734–7477. 

List of Subjects 

9 CFR Part 53 

Animal diseases, Indemnity 

payments, Livestock, Poultry and 

poultry products. 

9 CFR Part 56 

Animal diseases, Indemnity 

payments, Low pathogenic avian 

influenza, Poultry. 

9 CFR Parts 145, 146, and 147 

Animal diseases, Poultry and poultry 

products, Reporting and recordkeeping 

requirements. 

■ Accordingly, we are amending 9 CFR 

chapter I as follows: 

PART 53—FOOT-AND-MOUTH 

DISEASE, PLEUROPNEUMONIA, 

RINDERPEST, AND CERTAIN OTHER 

COMMUNICABLE DISEASES OF 

LIVESTOCK OR POULTRY 

■ 1. The authority citation for 9 CFR 

part 53 continues to read as follows: 

Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22, 

2.80, and 371.4. 

§ 53.4 [Amended] 

■ 2. Section 53.4 is amended as follows: 

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

third sentence. 

■ b. In paragraph (a), in the fourth 

sentence, by removing the words ‘‘or 

poultry.’’

■ c. By removing and reserving 

paragraph (b). 

§ 53.8 [Amended] 

■ 3. Section 53.8 is amended as follows: 

■ a. In paragraph (a) introductory text, 

by removing the words ‘‘Except for 

claims made under § 53.11, claims’’ and 

adding the word ‘‘Claims’’ in their 

place. 

■ b. By removing and reserving 

paragraph (b) and removing paragraph 

(c). 

§ 53.11 [Removed] 

■ 4. Section 53.11 is removed. 

■ 5. A new part 56 is added to read as 

follows. 

PART 56—CONTROL OF H5/H7 LOW 

PATHOGENIC AVIAN INFLUENZA 

Sec. 

56.1 Definitions. 

56.2 Cooperation with States. 

56.3 Payment of indemnity. 

56.4 Determination of indemnity amounts. 

56.5 Destruction and disposal of poultry 

and cleaning and disinfection of 

premises, conveyances, and materials. 

56.6 Presentation of claims for indemnity. 

56.7 Mortgage against poultry or eggs. 

56.8 Conditions for payment. 

56.9 Claims not allowed. 

56.10 Initial State response and 

containment plan. 

Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22, 

2.80, and 371.4. 

§ 56.1 Definitions. 

Administrator. The Administrator, 

Animal and Plant Health Inspection 

Service, or any other employee of the 

Animal and Plant Health Inspection 

Service delegated to act in the 

Administrator’s stead. 

Animal and Plant Health Inspection 

Service (APHIS). The Animal and Plant 

Health Inspection Service of the U.S. 

Department of Agriculture. 

Breeding flock. A flock that is 

composed of stock that has been 

developed for commercial egg or meat 

production and is maintained for the 

principal purpose of producing chicks 

for the ultimate production of eggs or 

meat for human consumption. 

Classification. A designation earned 

by participation in a Plan program. 

Commercial meat-type flock. All of 

the meat-type chickens or meat-type 

turkeys on one farm. However, at the 

discretion of the Official State Agency, 

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 may be considered as a 

separate flock. 

Commercial table-egg layer flock. All 

table-egg layers of one classification in 

one barn or house. 

Commercial table-egg layer premises. 

A farm containing contiguous flocks of 

commercial table-egg layers under 

common ownership. 

Cooperating State Agency. Any State 

authority recognized by the Department 

to cooperate in the administration of the 

provisions of this part 56. This may 

include the State animal health 

authority or the Official State Agency. 

Department. The U.S. Department of 

Agriculture. 

Domesticated. Propagated and 

maintained under the control of a 

person. 

Flock plan. 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 


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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. 

H5/H7 low pathogenic avian 

influenza (LPAI). An infection of 

poultry caused by an influenza A virus 

of H5 or H7 subtype that has an 

intravenous pathogenicity index test in 

6-week-old chickens less than 1.2 or any 

infection with influenza A viruses of H5 

or H7 subtype for which nucleotide 

sequencing has not demonstrated the 

presence of multiple basic amino acids 

at the cleavage site of the 

hemagglutinin. 

H5/H7 LPAI exposed. At risk of 

developing H5/H7 LPAI because of 

association with birds or poultry 

infected with H5/H7 LPAI, excrement 

from birds or poultry infected with H5/ 

H7 LPAI, or other material touched by 

birds or poultry infected with H5/H7 

LPAI, or because there is reason to 

believe that association has occurred 

with H5/H7 LPAI or vectors of H5/H7 

LPAI, as determined by the Cooperating 

State Agency and confirmed by APHIS. 

H5/H7 LPAI virus infection (infected). 

Poultry will be considered to be infected 

with H5/H7 LPAI for the purposes of 

this part if: 

(1) H5/H7 LPAI virus has been 

isolated and identified as such from 

poultry; or 

(2) Viral antigen or viral RNA specific 

to the H5 or H7 subtype of AI virus has 

been detected in poultry; or 

(3) 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. 

Meat-type chicken. A domesticated 

chicken grown for the primary purpose 

of producing meat including but not 

limited to broilers, roasters, fryers, and 

cornish. 

Meat-type turkey. A domesticated 

turkey grown for the primary purpose of 

producing meat. 

Mortgage. Any mortgage, lien, or other 

security or beneficial interest held by 

any person other than the one claiming 

indemnity for the destruction of poultry 

or eggs due to H5/H7 LPAI. 

Official appraiser (APHIS official 

appraiser, State official appraiser). A 

person authorized by APHIS to appraise 

poultry for the purposes of this part. A 

State official appraiser is selected by a 

State and authorized by APHIS. 

Official State Agency. The State 

authority recognized by the Department 

to cooperate in the administration of the 

Plan. 

Plan. The provisions of the National 

Poultry Improvement Plan contained in 

parts 145, 146, and 147 of this chapter. 

Poultry. Domesticated fowl, including 

chickens, turkeys, ostriches, emus, 

rheas, cassowaries, waterfowl, and game 

birds, except doves and pigeons, which 

are bred for the primary purpose of 

producing eggs or meat. 

Secretary. The Secretary of the United 

States Department of Agriculture, or any 

officer or employee of the Department 

delegated to act in the Secretary’s stead. 

State. Any of the States, the District 

of Columbia, the Commonwealth of 

Puerto Rico, Guam, the Commonwealth 

of the Northern Mariana Islands, the 

Virgin Islands of the United States, or 

any territory or possession of the United 

States. 

Table-egg layer. A domesticated 

chicken grown for the primary purpose 

of producing eggs for human 

consumption. 

United States. All of the States. 

§ 56.2 Cooperation with States. 

(a) The Administrator has been 

delegated the authority to cooperate 

with Cooperating State Agencies in the 

eradication of H5/H7 LPAI. This 

cooperation may include, but is not 

necessarily limited to, the following 

activities: 

(1) Payment to Cooperating State 

Agencies for surveillance and 

monitoring associated with poultry that 

have been infected with or exposed to 

H5/H7 LPAI; 

(2) Transfer of vaccine for H5/H7 

LPAI to Cooperating State Agencies if 

provided for in the initial State response 

and containment plan developed by the 

Official State Agency and approved by 

APHIS under § 56.10; and 

(3) Payment for vaccine 

administration by Cooperating State 

Agencies, if provided for in the initial 

State response and containment plan 

developed by the Official State Agency 

and approved by APHIS under § 56.10 

(b)(1) Any payment made to a State or 

an Official State Agency for the 

activities listed in paragraphs (a)(1) and 

(a)(3) of this section must be made 

through a cooperative agreement 

between the Cooperating State Agency 

and APHIS. The payment for which the 

Cooperating State Agency is eligible will 

be determined in the cooperative 

agreement. 

(i) For any Cooperating State Agency 

that participates in the National Poultry 

Improvement Plan 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, as described in 

§ 56.10 of this part, the cooperative 

agreement will provide that the 

Cooperating State Agency is eligible for 

payment of 100 percent of the costs of 

surveillance and monitoring and 100 

percent of the costs of vaccine 

administration, as determined in the 

cooperative agreement. 

(ii) For any Cooperating State Agency 

that does not meet the criteria in 

paragraph (b)(1)(i) of this section, the 

cooperative agreement will provide that 

the Cooperating State Agency is eligible 

for payment of 25 percent of the costs 

of surveillance and monitoring and 25 

percent of the costs of vaccine 

administration, as determined in the 

cooperative agreement. 

(2) Transfer of vaccine under 

paragraph (a)(2) of this section must be 

accomplished through a cooperative 

agreement between the Cooperating 

State Agency and APHIS. 

(c) States will be responsible for 

making the determination to request 

Federal assistance under this part in the 

event of an outbreak of H5/H7 LPAI. 

§ 56.3 Payment of indemnity. 

(a) Activities eligible for indemnity. 

The Administrator may pay indemnity 

for the activities listed in paragraphs 

(a)(1) through (a)(3) of this section, as 

provided in paragraph (b) of this 

section: 

(1) Destruction and disposal of 

poultry that were infected with or 

exposed to H5/H7 LPAI; 

(2) Destruction of any eggs destroyed 

during testing of poultry for H5/H7 

LPAI during an outbreak of H5/H7 

LPAI; and 

(3) 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. 


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(b) Percentage of costs eligible for 

indemnity. Except for poultry that are 

described by the categories in 

paragraphs (b)(1) through (b)(7) of this 

section, the Administrator is authorized 

to pay 100 percent of the costs, as 

determined in accordance with § 56.4, 

of the activities described in paragraphs 

(a)(1) through (a)(3) of this section, 

regardless of whether the infected or 

exposed poultry participate in the Plan. 

For infected or exposed poultry that are 

described by the categories in 

paragraphs (b)(1) through (b)(7) of this 

section, the Administrator is authorized 

to pay 25 percent of the costs of the 

activities described in paragraphs (a)(1) 

through (a)(3) of this section: 

(1) The poultry are egg-type breeding 

chickens from a flock that participates 

in any Plan program in part 145 of this 

chapter but that does not participate in 

the U.S. Avian Influenza Clean program 

of the Plan in § 145.23(h) of this chapter; 

or 

(2) The poultry are meat-type 

breeding chickens from a flock that 

participates in any Plan program in part 

145 of this chapter but that does not 

participate in the U.S. Avian Influenza 

Clean program of the Plan in § 145.33(l) 

of this chapter; or 

(3) The poultry are breeding turkeys 

from a flock that participates in any 

Plan program in part 145 of this chapter 

but that does not participate in the U.S. 

H5/H7 Avian Influenza Clean program 

of the Plan in § 145.43(g) of this chapter; 

or 

(4) The poultry are commercial tableegg layers from a premises that has 

75,000 or more birds and that does not 

participate in the U.S. H5/H7 Avian 

Influenza Monitored program of the 

Plan in § 146.23(a) of this chapter; or 

(5) The poultry are commercial meattype chickens that are associated with a 

slaughter plant that slaughters 200,000 

or more meat-type chickens per 

operating week and that does not 

participate in the U.S. H5/H7 Avian 

Influenza Monitored program of the 

Plan in § 146.33(a) of this chapter; or 

(6) The poultry are commercial meattype turkeys that are associated with a 

slaughter plant that slaughters 2 million 

or more meat-type turkeys in a 12- 

month period and that does not 

participate in the U.S. H5/H7 Avian 

Influenza Monitored program of the 

Plan in § 146.43(a) of this chapter; or 

(7) The poultry 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 

National Poultry Improvement Plan 

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, 

unless such poultry participate in the 

Plan with another State that does 

participate in the National Poultry 

Improvement Plan 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. 

(c) Other sources of payment. If the 

recipient of indemnity for any of the 

activities listed in paragraphs (a)(1) 

through (a)(3) of this section 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. 

§ 56.4 Determination of indemnity 

amounts. 

(a) Destruction and disposal of 

poultry. (1) Indemnity for the 

destruction of poultry infected with or 

exposed to H5/H7 LPAI will be based on 

the fair market value of the poultry, as 

determined by an appraisal. Poultry 

infected with or exposed to H5/H7 LPAI 

that are removed by APHIS or a 

Cooperating State Agency from a flock 

will be appraised by an APHIS official 

appraiser and a State official appraiser 

jointly, or, if APHIS and State 

authorities agree, by either an APHIS 

official appraiser or a State official 

appraiser alone. For laying hens, the 

appraised value should include the 

hen’s projected future egg production. 

Appraisals of poultry must be reported 

on forms furnished by APHIS and 

signed by the appraisers and must be 

signed by the owners of the poultry to 

indicate agreement with the appraisal 

amount. Appraisals of poultry must be 

signed by the owners of the poultry 

prior to the destruction of the poultry, 

unless the owners, APHIS, and the 

Cooperating State Agency agree that the 

poultry may be destroyed immediately. 

Reports of appraisals must show the 

number of birds and the value per head. 

(2) Indemnity for disposal of poultry 

infected with or exposed to H5/H7 LPAI 

will be based on receipts or other 

documentation maintained by the 

claimant verifying expenditures for 

disposal activities authorized by this 

part. Any disposal of poultry infected 

with or exposed to H5/H7 LPAI for 

which compensation is requested must 

be performed under a compliance 

agreement between the claimant, the 

Cooperating State Agency, and APHIS. 

APHIS will review claims for 

compensation for disposal 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. If disposal is 

performed by the Cooperating State 

Agency, APHIS will indemnify the 

Cooperating State Agency for disposal 

under a cooperative agreement. 

(3) The destruction and disposal of 

the indemnified poultry must be 

conducted in accordance with the initial 

State response and containment plan for 

H5/H7 LPAI, as described in § 56.10. 

(b) Destruction of eggs. Indemnity for 

eggs destroyed during an outbreak for 

testing for H5/H7 LPAI will be based on 

the fair market value of the eggs, as 

determined by an appraisal. Eggs 

destroyed for testing for H5/H7 LPAI 

will be appraised by an APHIS official 

appraiser and a State official appraiser 

jointly, or, if APHIS and State 

authorities agree, by either an APHIS 

official appraiser or a State official 

appraiser alone. Appraisals of eggs must 

be reported on forms furnished by 

APHIS and signed by the appraisers and 

must be signed by the owners of the 

eggs to indicate agreement with the 

appraisal amount. Appraisals of eggs 

must be signed by the owners of the 

eggs prior to the destruction of the 

poultry, unless the owners, APHIS, and 

the Cooperating State Agency agree that 

the eggs may be destroyed immediately. 

Reports of appraisals must show the 

number of eggs and the value per egg. 

(c) Cleaning and disinfection. (1) 

Indemnity for cleaning and disinfection 

of premises, conveyances, and materials 

that came into contact with poultry that 

are infected with or exposed to H5/H7 

LPAI will be based on receipts or other 

documentation maintained by the 

claimant verifying expenditures for 

cleaning and disinfection activities 

authorized by this part. 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. 

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. 

(2) 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, indemnity 

for the destruction of the materials will 

be based on the fair market value of 

those materials, as determined by an 

appraisal. Materials will be appraised by 

an APHIS official appraiser and a State 

official appraiser jointly, or, if APHIS 


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and State authorities agree, by either an 

APHIS official appraiser or a State 

official appraiser alone. Indemnity for 

disposal of the materials will be based 

on receipts or other documentation 

maintained by the claimant verifying 

expenditures for disposal activities 

authorized by this part. Any disposal of 

materials for which indemnity is 

requested must be performed under a 

compliance agreement between the 

claimant, the Cooperating State Agency, 

and APHIS. APHIS will review claims 

for compensation for disposal 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. 

§ 56.5 Destruction and disposal of poultry 

and cleaning and disinfection of premises, 

conveyances, and materials. 

(a) Destruction of poultry. Poultry that 

are infected with or exposed to H5/H7 

LPAI may be required to be destroyed at 

the discretion of the Cooperating State 

Agency and APHIS and in accordance 

with the initial State response and 

containment plan described in § 56.10. 

The Cooperating State Agency and 

APHIS will select a method to use for 

the destruction of such poultry based on 

the following factors: 

(1) The species, size, and number of 

the poultry to be destroyed; 

(2) The environment in which the 

poultry are maintained; 

(3) The risk to human health or safety 

of the method used; 

(4) Whether the method requires 

specialized equipment or training; 

(5) The risk that the method poses of 

spreading the H5/H7 LPAI virus; 

(6) Any hazard the method could pose 

to the environment; 

(7) The degree of bird control and 

restraint required to administer the 

destruction method; and 

(8) The speed with which destruction 

must be conducted. 

(b) Disposal of poultry. Carcasses of 

poultry that have died from H5/H7 LPAI 

infection or poultry that have been 

humanely slaughtered to fulfill 

depopulation requirements must be 

disposed of promptly and efficiently in 

accordance with the initial State 

response and containment plan 

described in § 56.10 to prevent the 

spread of H5/H7 LPAI infection. 

Disposal methods will be selected by 

the Cooperating State Agency and 

APHIS and may include one or more of 

the following: Burial, incineration, 

composting, or rendering. Regardless of 

the method used, strict biosecurity 

procedures must be implemented and 

enforced for all personnel and vehicular 

movement into and out of the area in 

accordance with the initial State 

response and containment plan to 

prevent dissemination of the H5/H7 

LPAI virus. 

(c) Controlled marketing. (1) At the 

discretion of the Cooperating State 

Agency and APHIS, poultry that has 

been infected with or exposed to H5/H7 

LPAI may be allowed to move for 

controlled marketing in accordance with 

the initial State response and 

containment plan described in § 56.10 

and in accordance with the following 

requirements: 

(i) 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 

(ii) 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. 

(2) Poultry moved for controlled 

marketing will not be eligible for 

indemnity under § 56.3. 

(d) Cleaning and disinfection of 

premises, conveyances, and materials. 

Premises, conveyances, and materials 

that came into contact with poultry 

infected with or exposed to H5/H7 LPAI 

must be cleaned and disinfected; 

Provided, that materials for which the 

cost of cleaning and disinfection would 

exceed the value of the materials or for 

which cleaning and disinfection would 

be impracticable for any reason may be 

destroyed and disposed. 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. This paragraph (d) 

provides guidelines for the development 

of a cleaning and disinfection plan for 

a premises and for the materials and 

conveyances on that premises. 

(1) Preparation for cleaning and 

disinfection. Following the 

depopulation or controlled marketing of 

all poultry infected with or exposed to 

H5/H7 LPAI on a premises, the 

following procedures should be 

completed prior to cleaning and 

disinfection: 

(i) 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; 

(ii) Apply insecticides and 

rodenticides immediately after the 

removal of the birds, before the house 

cools; 

(iii) Close the house in which the 

poultry were held, maintaining just 

enough ventilation to remove moisture. 

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. 

(iv) Heat the house to 100 °F for the 

72 hours prior to cleaning and 

disinfection. 

(2) Cleaning and disinfection. All 

premises, conveyances, and materials 

that came into contact with poultry that 

were infected with or exposed to H5/H7 

LPAI must be cleaned and disinfected. 

Cleaning and disinfection must be 

performed on all buildings that came 

into contact with poultry that were 

infected with or exposed to H5/H7 LPAI 

within a premises, including 

pumphouses and service areas. To 

accomplish cleaning and disinfection, 

the following procedures should be 

completed: 

(i) Disposal of manure, debris, and 

feed. Clean up all manure, debris, and 

feed. Compost manure, debris, and feed 

in the house if possible. If this is not 

possible, set up a system for hauling 

manure, debris, and feed to an approved 

site for burial, piling, or composting. Do 

not clean out the house or move or 

spread litter until any H5/H7 LPAI virus 

that may have contaminated the manure 

and litter is dead, as determined by the 

Cooperating State Agency and in 

accordance with the initial State 

response and containment plan 

described in § 56.10. If composting is 

used as a disposal method, manure and 

litter should be composted in 

accordance with State and local 

regulations. If litter is piled, the litter 

pile must be covered and allowed to sit 

undisturbed for an amount of time 

approved by the Cooperating State 

Agency and APHIS and in accordance 

the initial State response and 

containment plan described in § 56.10. 

Drying and heat in situ over time are 

effective and may be used in place of 

composting if weather conditions or 

conditions in the building are favorable. 

After use, equipment used to clean out 

manure, debris, and feed must be 

washed, disinfected, and inspected at 

the site to which the manure and litter 

was transported. In the case of 

inclement weather, the equipment may 

be washed, disinfected, and inspected at 

off-site wash stations at the discretion of 

the Cooperating State Agency and 

APHIS. 

(ii) Cleaning of premises and 

materials. Cleaning and washing should 

be thorough to ensure that all materials 


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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 soap and water to knock dust 

down to the floor, using no more water 

than necessary. Wash equipment and 

houses with soap 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 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 

authorized in § 71.10(a) of this chapter. 

A power spray unit should be used to 

spray the disinfectant on all surfaces, 

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. 

(vi) Cleaning and disinfection of 

conveyances. Clean and disinfect all 

trucks and vehicles used in transporting 

affected poultry or materials before soil 

dries in place. Both exterior, including 

the undercarriage, and interior surfaces, 

including truck cabs, must be cleaned. 

The interior of the truck cabs should be 

washed with clean water and sponged 

with a disinfectant authorized in 

§ 71.10(a) of this chapter. Manure and 

litter removed from these vehicles 

should be handled in a manner similar 

to that described in paragraph (d)(2)(i) 

of this section. 

(3) Activities after cleaning and 

disinfection. Premises should be 

checked for virus before repopulation in 

accordance with the initial State 

response and containment plan 

described in § 56.10. The premises may 

not be restocked with poultry until after 

the date specified in the initial State 

response and containment plan 

described in § 56.10. 

(4) Destruction and disposal of 

materials. In the case of materials for 

which the cost of cleaning and 

disinfection would exceed the value of 

the materials or for which cleaning and 

disinfection would be impracticable for 

any reason, the destruction and disposal 

of the materials must be conducted in 

accordance with the initial State 

response and containment plan 

described in § 56.10. 

§ 56.6 Presentation of claims for 

indemnity. 

Claims for the following must be 

documented on a form furnished by 

APHIS and presented to an APHIS 

employee or the State representative 

authorized to accept the claims: 

(a) Compensation for the value of 

poultry to be destroyed due to infection 

with or exposure to H5/H7 LPAI; 

(b) Compensation for the value of eggs 

to be destroyed during testing for H5/H7 

LPAI; and 

(c) Compensation for the cost of 

cleaning and disinfection of premises, 

conveyances, and materials that came 

into contact with poultry 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 cost of destruction and 

disposal for the materials. 

§ 56.7 Mortgage against poultry or eggs. 

When poultry or eggs have been 

destroyed under this part, any claim for 

indemnity must be presented on forms 

furnished by APHIS. The owner of the 

poultry or eggs must certify on the forms 

that the poultry or eggs covered are, or 

are not, subject to any mortgage as 

defined in this part. If the owner states 

there is a mortgage, the owner and each 

person holding a mortgage on the 

poultry or eggs must sign the APHISfurnished form, consenting to the 

payment of indemnity to the person 

specified on the form. 

§ 56.8 Conditions for payment. 

(a) When poultry or eggs have been 

destroyed pursuant to this part, 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. The indemnity the 

Administrator may pay to such a party 

or parties shall be determined as 

follows: 

(1) Divide the value of the contract the 

owner of the poultry or eggs entered 

into with another party for the growing 

and care of the poultry or eggs in dollars 

by the duration of the contract as it was 

signed prior to the H5/H7 LPAI outbreak 

in days; 

(2) Multiply this figure 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. 

(b)(1) If indemnity for the destroyed 

poultry or eggs is being provided for 100 

percent of eligible costs under § 56.3(b), 

the Administrator may pay contractors 

eligible for compensation under this 

section 100 percent of the indemnity 

determined in paragraph (a) of this 

section. 

(2) If indemnity for the destroyed 

poultry or eggs is being provided for 25 

percent of eligible costs under § 56.3(b), 

the Administrator may pay contractors 

eligible for compensation under this 

section 25 percent of the indemnity 

determined in paragraph (a) of this 

section. 

(c) If indemnity is paid to a contractor 

under this section, 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. 

(d) In the event that determination of 

indemnity to a party with which the 

owner of destroyed poultry or eggs has 

entered into a contract for the growing 

or care of the poultry or eggs using the 

method described in paragraph (a) of 

this section is determined to be 

impractical or inappropriate, APHIS 

may use any other method that the 

Administrator deems appropriate to 

make that determination. 

§ 56.9 Claims not allowed. 

(a) The Department will not allow 

claims arising out of the destruction of 

poultry unless the poultry have been 

appraised as prescribed in this part and 

the owners have signed the appraisal 

form indicating agreement with the 

appraisal amount as required by 

§ 56.4(a)(1). 

(b) The Department 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. Persons who 

do not maintain their poultry and 

premises in accordance with this 

written agreement will not be eligible to 

receive indemnity under this part. 

(c) The Department will not allow 

claims arising out of the destruction of 

poultry unless the poultry have been 

moved or handled by the owner in 

accordance with an agreement for the 

control and eradication of H5/H7 LPAI 

and in accordance with part 56, for any 

progeny of any poultry unless the 

poultry have been moved or handled by 

the owner in accordance with an 

agreement for the control and 

eradication of H5/H7 LPAI and in 


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accordance with part 56, or for any 

poultry that become or have become 

infected with or exposed to H5/H7 LPAI 

because of actions not in accordance 

with an agreement for the control and 

eradication of H5/H7 LPAI or a violation 

of this part. 

§ 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 

and administered by the Cooperating 

State Agency of the relevant State. This 

plan must include: 

(1) Provisions for a standing 

emergency disease management 

committee, regular meetings, and 

exercises, including coordination with 

any tribal governments that may be 

affected; 

(2) A minimum biosecurity plan 

followed by all poultry producers; 

(3) Provisions for adequate diagnostic 

resources; 

(4) Detailed, specific procedures for 

initial handling and investigation of 

suspected cases of H5/H7 LPAI; 

(5) Detailed, specific procedures for 

reporting test results to APHIS. These 

procedures must be developed after 

appropriate consultation with poultry 

producers in the State and must provide 

for the reporting only of confirmed cases 

of H5/H7 LPAI in accordance with 

§ 146.13 of this chapter; 

(6) Detailed, strict quarantine 

measures for presumptive and 

confirmed index cases; 

(7) Provisions for developing flock 

plans for infected and exposed flocks; 

(8) Detailed plans for disposal of 

infected flocks, including preexisting 

agreements with regulatory agencies and 

detailed plans for carcass disposal, 

disposal sites, and resources for 

conducting disposal, and detailed plans 

for disposal of materials that come into 

contact with poultry infected with or 

exposed to H5/H7 LPAI; 

(9) Detailed plans for cleaning and 

disinfection of premises, repopulation, 

and monitoring after repopulation; 

(10) Provisions for appropriate 

control/monitoring zones, contact 

surveys, and movement restrictions; 

(11) Provisions for monitoring 

activities in control zones; 

(12) If vaccination is considered as an 

option, a written plan for use in place 

with proper controls and provisions for 

APHIS approval of any use of vaccine; 

(13) Plans for H5/H7 LPAI-negative 

flocks that provide for quarantine, 

testing, and controlled marketing; and 

(14) Public awareness and education 

programs regarding avian influenza. 

(b) If a State is designated a U.S. 

Avian Influenza Monitored State, Layers 

under § 146.24(a) of this chapter or a 

U.S. Avian Influenza Monitored State, 

Turkeys under § 146.44(a) of this 

chapter, 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. 

PART 145—NATIONAL POULTRY 

IMPROVEMENT PLAN FOR BREEDING 

POULTRY 

■ 6. The authority citation for part 145 

continues to read as follows: 

Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22, 

2.80, and 371.4. 

■ 7. The part heading for part 145 is 

revised to read as set forth above. 

■ 8. A new part 146 is added to read as 

follows. 

PART 146—NATIONAL POULTRY 

IMPROVEMENT PLAN FOR 

COMMERCIAL POULTRY 

Subpart A—General Provisions 

Sec. 

146.1 Definitions. 

146.2 Administration. 

146.3 Participation. 

146.4 General provisions for all 

participating flocks and slaughter plants. 

146.5 Specific provisions for participating 

flocks. 

146.6 Specific provisions for participating 

slaughter plants. 

146.7 Terminology and classification; 

general. 

146.8 Terminology and classification; 

slaughter plants. 

146.9 Terminology and classification; 

flocks, products, and States. 

146.10 Supervision. 

146.11 Inspections. 

146.12 Debarment from participation. 

146.13 Testing. 

146.14 Diagnostic surveillance program for 

H5/H7 low pathogenic avian influenza. 

Subpart B—Special Provisions for 

Commercial Table-Egg Layer Flocks 

146.21 Definitions. 

146.22 Participation. 

146.23 Terminology and classification; 

flocks and products. 

146.24 Terminology and classification; 

States. 

Subpart C—Special Provisions for MeatType Chicken Slaughter Plants 

146.31 Definitions. 

146.32 Participation. 

146.33 Terminology and classification; 

meat-type chicken slaughter plants. 

Subpart D—Special Provisions for MeatType Turkey Slaughter Plants 

146.41 Definitions. 

146.42 Participation. 

146.43 Terminology and classification; 

meat-type turkey slaughter plants. 

146.44 Terminology and classification; 

States. 

Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22, 

2.80, and 371.4. 

Subpart A—General Provisions 

§ 146.1 Definitions. 

Except where the context otherwise 

requires, for the purposes of this subpart 

the following terms shall be construed, 

respectively, to mean: 

Administrator. The Administrator, 

Animal and Plant Health Inspection 

Service, or any person authorized to act 

for the Administrator. 

Affiliated flock. A meat-type flock that 

is owned by or has an agreement to 

participate in the Plan with a slaughter 

plant and that participates in the Plan 

through that slaughter plant. 

Animal and Plant Health Inspection 

Service (APHIS). The Animal and Plant 

Health Inspection Service of the U.S. 

Department of Agriculture. 

Authorized Agent. Any person 

designated under § 146.10(a) to perform 

functions under this part. 

Authorized laboratory. An authorized 

laboratory designated by an Official 

State Agency, subject to review by the 

Service, to perform the diagnostic 

assays. The Service’s review will 

include, but will not necessarily be 

limited to, checking records, laboratory 

protocol, check-test proficiency, 

periodic duplicate samples, and peer 

review. A satisfactory review will result 

in the authorized laboratory being 

recognized by the Service as a national 

approved laboratory qualified to 

perform the diagnostic assays provided 

for in this part. 

Classification. A designation earned 

by participation in a Plan program. 

Commercial meat-type flock. All of 

the meat-type chickens or meat-type 

turkeys on one farm. However, at the 

discretion of the Official State Agency, 

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 may be considered as a 

separate flock. 

Commercial table-egg layer flock. All 

table-egg layers of one classification in 

one barn or house. 

Commercial table-egg layer premises. 

A farm containing contiguous flocks of 

commercial table-egg layers under 

common ownership. 


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Department. The U.S. Department of 

Agriculture. 

Domesticated. Propagated and 

maintained under the control of a 

person. 

Equivalent. Requirements which are 

equal to the program, conditions, 

criteria, or classifications with which 

compared, as determined by the Official 

State Agency and with the concurrence 

of the Service. 

H5/H7 low pathogenic avian 

influenza (LPAI). An infection of 

poultry caused by an influenza A virus 

of H5 or H7 subtype that has an 

intravenous pathogenicity index test in 

6-week-old chickens less than 1.2 or any 

infection with influenza A viruses of H5 

or H7 subtype for which nucleotide 

sequencing has not demonstrated the 

presence of multiple basic amino acids 

at the cleavage site of the 

hemagglutinin. 

H5/H7 LPAI virus infection (infected). 

Poultry will be considered to be infected 

with H5/H7 LPAI for the purposes of 

this part if: 

(1) H5/H7 LPAI virus has been 

isolated and identified as such from 

poultry; or 

(2) Viral antigen or viral RNA specific 

to the H5 or H7 subtype of AI virus has 

been detected in poultry; or 

(3) 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. 

Official State Agency. The State 

authority recognized by the Department 

to cooperate in the administration of the 

Plan. 

Person. A natural person, firm, or 

corporation. 

Plan. The provisions of the National 

Poultry Improvement Plan contained in 

this part. 

Poultry. Domesticated chickens and 

turkeys that are bred for the primary 

purpose of producing eggs or meat. 

Program. Management, sanitation, 

testing, and monitoring procedures 

which, if complied with, will qualify, 

and maintain qualification for, 

designation of a flock, a slaughter plant, 

or a State by an official Plan 

classification and illustrative design, as 

described in § 146.9 of this part. 

Service. The Animal and Plant Health 

Inspection Service of the U.S. 

Department of Agriculture. 

State. Any of the States, the District 

of Columbia, the Commonwealth of 

Puerto Rico, Guam, the Commonwealth 

of the Northern Mariana Islands, the 

Virgin Islands of the United States, or 

any territory or possession of the United 

States. 

State Inspector. Any person employed 

or authorized under § 146.10(b) to 

perform functions under this part. 

United States. All of the States. 

§ 146.2 Administration. 

(a) The Department cooperates 

through a Memorandum of 

Understanding with the Official State 

Agency in the administration of the 

Plan. 

(b) The administrative procedures and 

decisions of the Official State Agency 

are subject to review by the Service. The 

Official State Agency shall carry out the 

administration of the Plan within the 

State according to the applicable 

provisions of the Plan and the 

Memorandum of Understanding. 

(c)(1) An Official State Agency may 

accept for participation a commercial 

table-egg layer flock or a commercial 

meat-type flock (including an affiliated 

flock) located in another participating 

State under a mutual understanding and 

agreement, in writing, between the two 

Official State Agencies regarding 

conditions of participation and 

supervision. 

(2) An Official State Agency may 

accept for participation a commercial 

table-egg layer flock or a commercial 

meat-type flock (including an affiliated 

flock) located in a State that does not 

participate in the Plan under a mutual 

understanding and agreement, in 

writing, between the owner of the flock 

and the Official State Agency regarding 

conditions of participation and 

supervision. 

(d) The Official State Agency of any 

State may adopt regulations applicable 

to the administration of the Plan in such 

State further defining the provisions of 

the Plan or establishing higher 

standards, compatible with the Plan. 

(e) An authorized laboratory will 

follow the laboratory protocols outlined 

in part 147 of this chapter when 

determining the status of a participating 

flock with respect to an official Plan 

classification. 

(f) States will be responsible for 

making the determination to request 

Federal assistance under part 56 of this 

chapter in the event of an outbreak of 

H5/H7 LPAI. 

§ 146.3 Participation. 

(a) Any table-egg producer and any 

meat-type chicken or meat-type turkey 

slaughter plant, including its affiliated 

flocks, may participate in the Plan when 

the producer or plant has demonstrated, 

to the satisfaction of the Official State 

Agency, that its facilities, personnel, 

and practices are adequate for carrying 

out the relevant special provisions of 

this part and has signed an agreement 

with the Official State Agency to 

comply with the relevant special 

provisions of this part. 

(b) Each participant shall comply with 

the Plan throughout the operating year, 

or until released by the Official State 

Agency. 

(c) A participating slaughter plant 

shall participate with all of the meattype chicken and/or meat-type turkey 

flocks that are processed at the facility, 

including affiliated flocks. Affiliated 

flocks must participate through a 

written agreement with a participating 

slaughter plant that is approved by the 

Official State Agency. 

(d) Participation in the Plan shall 

entitle the participant to use the Plan 

emblem reproduced as follows: 

(e) Participation in the NPIP by 

commercial table-egg layers will cease 

after September 26, 2008 unless the 

majority of the commercial table-egg 

layer delegates vote to continue the 

program in accordance with subpart E of 

part 147 of this chapter at a National 

Plan Conference. 

§ 146.4 General provisions for all 

participating flocks and slaughter plants. 

(a) Records that establish the identity 

of products handled shall be maintained 

in a manner satisfactory to the Official 

State Agency. 

(b) Material that is used to advertise 

products shall be subject to inspection 

by the Official State Agency at any time. 

(c) Advertising must be in accordance 

with the Plan, and applicable rules and 

regulations of the Official State Agency 


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and the Federal Trade Commission. A 

participant advertising products as 

being of any official classification may 

include in their advertising reference to 

associated or franchised slaughter or 

production facilities only when such 

facilities produce products of the same 

classification. 

(d) Each participant shall be assigned 

a permanent approval number by the 

Service. This number, prefaced by the 

numerical code of the State, will be the 

official approval number of the 

participant and may be used on each 

certificate, invoice, shipping label, or 

other document used by the participant 

in the sale of the participant’s products. 

Each Official State Agency which 

requires an approval number for out-ofState participants to ship into its State 

shall honor this number. 

§ 146.5 Specific provisions for all 

participating flocks. 

(a) Participating flocks, and all 

equipment used in connection with the 

flocks, shall be separated from nonparticipating flocks in a manner 

acceptable to the Official State Agency. 

(b) Poultry equipment, and poultry 

houses and the land in the immediate 

vicinity thereof, shall be kept in sanitary 

condition as recommended in 

§ 147.21(c) of this subchapter. 

§ 146.6 Specific provisions for 

participating slaughter plants. 

(a) Only meat-type chicken and meattype turkey slaughter plants that are 

under continuous inspection by the 

Food Safety and Inspection Service of 

the Department or under State 

inspection that the Food Safety 

Inspection Service has recognized as 

equivalent to federal inspection may 

participate in the Plan. 

(b) To participate in the Plan, meattype chicken and meat-type turkey 

slaughter plants must follow the 

relevant special provisions in 

§§ 146.33(a) and 146.43(a), respectively, 

for sample collection and flock 

monitoring, unless they are exempted 

from the special provisions under 

§§ 146.32(b) or 146.42(b), respectively. 

§ 146.7 Terminology and classification; 

general. 

The official classification terms 

defined in §§ 146.8 and 146.9 and the 

various designs illustrative of the 

official classifications reproduced in 

§ 146.9 may be used only by 

participants and to describe products 

that have met all of the specific 

requirements of such classifications. 

§ 146.8 Terminology and classification; 

slaughter plants. 

Participating slaughter plants shall be 

designated as ‘‘U.S. H5/H7 Avian 

Influenza Monitored.’’ All Official State 

Agencies shall be notified by the Service 

of additions, withdrawals, and changes 

in classification. 

§ 146.9 Terminology and classification; 

flocks, products, and States. 

Participating flocks (including 

affiliated flocks), products produced 

from them, and States which have met 

the respective requirements specified in 

subparts B, C, or D of this part may be 

designated by the following terms or 

illustrative designs: 

(a) U.S. H5/H7 Avian Influenza 

Monitored. (See §§ 146.23(a), 146.33(a), 

and 146.43(a).) 

(b) U.S. H5/H7 Avian Influenza 

Monitored State, Layers. (See § 146.24.) 

(c) U.S. H5/H7 Avian Influenza 

Monitored State, Turkeys. (See 

§ 146.44.) 

§ 146.10 Supervision. 

(a) The Official State Agency may 

designate qualified persons as 

Authorized Agents to do the sample 

collecting provided for in § 146.13 of 

this part. 

(b) The Official State Agency shall 

employ or authorize qualified persons 

as State Inspectors to perform the 

selecting and testing of participating 

flocks and to perform the official 

inspections necessary to verify 

compliance with the requirements of the 

Plan. 

(c) Authorities issued to Authorized 

Agents or State Inspectors under the 

provisions of this section shall be 

subject to cancellation by the Official 

State Agency on the grounds of 

incompetence or failure to comply with 

the provisions of the Plan or regulations 

of the Official State Agency. Such 

actions shall not be taken until thorough 

investigation has been made by the 

Official State Agency and the authorized 

person has been given notice of the 

proposed action and the basis thereof 

and an opportunity to present his or her 

views. 

§ 146.11 Inspections. 

(a) Each participating slaughter plant 

shall 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 

this part. 

(b) On-site inspections of any 

participating flocks and premises will 

be conducted if a State Inspector 

determines that a breach of testing has 

occurred for the Plan programs for 

which the flocks are certified. 

(c) The official H5/H7 LPAI testing 

records of all participating flocks and 

slaughter plants shall be examined 

annually by a State Inspector. Official 

H5/H7 LPAI testing records shall be 

maintained for 3 years. 


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Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Rules and Regulations 56331 

§ 146.12 Debarment from participation. 

Participants in the Plan who, after 

investigation by the Official State 

Agency or its representative, are notified 

in writing of their apparent 

noncompliance with the Plan provisions 

or regulations of the Official State 

Agency shall be afforded a reasonable 

time, as specified by the Official State 

Agency, within which to demonstrate or 

achieve compliance. If compliance is 

not demonstrated or achieved within 

the specified time, the Official State 

Agency may debar the participant from 

further participation in the Plan for such 

period, or indefinitely, as the Official 

State Agency may deem appropriate. 

The debarred participant shall be 

afforded notice of the bases for the 

debarment and opportunity to present 

his or her views with respect to the 

debarment in accordance with 

procedures adopted by the Official State 

Agency. The Official State Agency shall 

thereupon decide whether the 

debarment order shall continue in 

effect. Such decision shall be final 

unless the debarred participant, within 

30 days after the issuance of the 

debarment order, requests the 

Administrator to determine the 

eligibility of the debarred participant for 

participation in the Plan. In such an 

event, the Administrator shall 

determine the matter de novo in 

accordance with the rules of practice in 

7 CFR part 50, which are hereby made 

applicable to proceedings before the 

Administrator under this section. The 

definitions in 7 CFR 50.10 and the 

following definitions shall apply with 

respect to terms used in such rules of 

practice: 

(a) Administrator means the 

Administrator, Animal and Plant Health 

Inspection Service of the U.S. 

Department of Agriculture, or any 

officer or employee to whom authority 

has heretofore been delegated or to who 

authority may hereafter be delegated to 

act in his or her stead. 

(b) [Reserved] 

§ 146.13 Testing. 

(a) Samples. Either egg or blood 

samples may be used for testing. 

Samples must be collected in 

accordance with the following 

requirements: 

(1) Egg samples. Egg samples must be 

collected and prepared in accordance 

with the requirements in § 147.8 of this 

subchapter. 

(2) Blood samples. Blood samples 

obtained in the slaughter plant should 

be collected after the kill cut with birds 

remaining on the kill line. Hold an open 

1.5 mL snap cap micro-centrifuge tube 

under the neck of the bird directly after 

the kill cut and collect drips of blood 

until the tube is half full. Keep the 

blood tubes at room temperature for the 

clot to form, which should require a 

minimum of 4 hours and a maximum of 

12 hours. Refrigerate the tube after the 

clot has formed. Put tubes in a container 

and label it with plant name, date, shift 

(A.M. or Day, P.M. or Night), and flock 

number. After the clot is formed, the 

clot should be removed by the 

Authorized Agent in order to ensure 

good-quality sera. Prepare a laboratory 

submission form and ship samples with 

submission forms to the laboratory in a 

polystyrene foam cooler with frozen ice 

packs. Submission forms and the 

manner of submission must be approved 

by the Official State Agency and the 

authorized laboratory to ensure that 

there is sufficient information to 

identify the samples and that the 

samples are received in an acceptable 

condition for further tests to be reliably 

performed. Blood samples should be 

shipped routinely to the laboratory. 

Special arrangements should be 

developed for samples held over the 

weekend to ensure that the samples can 

be reliably tested. Blood samples for 

official tests shall be drawn by an 

Authorized Agent or State Inspector. 

(b) Avian influenza. The official tests 

for avian influenza are the agar gel 

immunodiffusion (AGID) test and the 

enzyme-linked immunosorbent assay 

(ELISA). These tests may be used on 

either egg yolk or blood samples. 

Standard test procedures for the AGID 

test for avian influenza are set forth in 

§ 147.9 of this subchapter. 

(1) The AGID test must be conducted 

on all ELISA-positive samples. Any 

samples that are found to be positive by 

AGID must be further tested and 

subtyped by Federal Reference 

Laboratories using the hemagglutination 

inhibition test. Final judgment may be 

based upon further sampling or culture 

results. 

(2) The tests must be conducted using 

antigens or test kits approved by the 

Service. Test kits must be licensed by 

the Service and approved by the Official 

State Agency, and tests must be 

performed in accordance with the 

recommendations of the producer or 

manufacturer. 

(3) The official determination of a 

flock as positive for the H5 or H7 

subtypes of low pathogenic avian 

influenza may be made only by the 

National Veterinary Services 

Laboratories. 

§ 146.14 Diagnostic surveillance program 

for H5/H7 low pathogenic avian influenza. 

(a) The Official State Agency must 

develop a diagnostic surveillance 

program for H5/H7 low pathogenic 

avian influenza for all poultry in the 

State. The exact provisions of the 

program are at the discretion of the 

States. The Service will use the 

standards in paragraph (b) of this 

section in assessing individual State 

plans for adequacy, including the 

specific provisions that the State 

developed. The standards should be 

used by States in developing those 

plans. 

(b) Avian influenza 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 

avian influenza 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 low pathogenic 

avian influenza 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 avian influenza. 

Subpart B—Special Provisions for 

Commercial Table-Egg Layer Flocks 

§ 146.21 Definitions. 

Table-egg layer. A domesticated 

chicken grown for the primary purpose 

of producing eggs for human 

consumption. 

§ 146.22 Participation. 

(a) Participating commercial table-egg 

layer flocks shall comply with the 

applicable general provisions of subpart 

A of this part and the special provisions 

of subpart B of this part. 

(b) Commercial table-egg laying 

premises with fewer than 75,000 birds 

are exempt from the special provisions 

of subpart B of this part. 

§ 146.23 Terminology and classification; 

flocks and products. 

Participating flocks which have met 

the respective requirements specified in 

this section may be designated by the 

following terms and the corresponding 

designs illustrated in § 146.9 of this 

part: 

(a) U.S. H5/H7 Avian Influenza 

Monitored. This program is intended to 

be the basis from which the table-egg 

layer industry may conduct a program 


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56332 Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Rules and Regulations 

to monitor for the H5/H7 subtypes of 

avian influenza. It is intended to 

determine the presence of the H5/H7 

subtypes of avian influenza in table-egg 

layers through routine serological 

surveillance of each participating 

commercial table-egg layer flock. A 

flock will qualify for this classification 

when the Official State Agency 

determines that it has met one of the 

following requirements: 

(1) It is a commercial table-egg layer 

flock in which a minimum of 11 birds 

or egg samples have been tested 

negative for antibodies to the H5/H7 

subtypes of avian influenza within 30 

days prior to disposal; 

(2) It is a commercial table-egg layer 

flock in which a minimum of 11 birds 

or egg samples have been tested 

negative for antibodies to the H5/H7 

subtypes of avian influenza within a 12- 

month period; or 

(3) It is a commercial table-egg layer 

flock that has an ongoing active and 

diagnostic surveillance program for the 

H5/H7 subtypes of avian influenza in 

which the number of birds or egg 

samples tested is equivalent to the 

number required in paragraph (a)(1) or 

(a)(2) and that is approved by the 

Official State Agency and the Service. 

(b) [Reserved] 

§ 146.24 Terminology and classification; 

States. 

(a) U.S. H5/H7 Avian Influenza 

Monitored State, Layers. (1) A State will 

be declared a U.S. H5/H7 Avian 

Influenza Monitored State, Layers when 

it has been determined by the Service 

that: 

(i) All commercial table-egg layer 

flocks in production within the State 

that are not exempt from the special 

provisions of this subpart B under 

§ 146.22 are classified as U.S. H5/H7 

Avian Influenza Monitored under 

§ 146.23(a) of this part; 

(ii) All egg-type chicken breeding 

flocks in production within the State are 

classified as U.S. Avian Influenza Clean 

under § 145.23(h) of this subchapter; 

(iii) All persons performing poultry 

disease diagnostic services within the 

State are required to report to the 

Official State Agency, within 24 hours, 

the source of all table-egg layer 

specimens that were deemed positive on 

an official test for avian influenza, as 

designated in § 146.13(a) of this chapter; 

(iv) All table-egg layer specimens that 

were deemed positive on an official test 

for avian influenza, as designated in 

§ 146.13(a) of this chapter, are sent to an 

authorized laboratory for subtyping; and 

(v) All table-egg layer flocks within 

the State that are found to be infected 

with the H5/H7 subtypes of avian 

influenza are quarantined, in 

accordance with an initial State 

response and containment plan as 

described in part 56 of this chapter and 

under the supervision of the Official 

State Agency. 

(2) If there is a discontinuation of any 

of the conditions described in paragraph 

(a)(1) of this section, or if repeated 

outbreaks of the H5/H7 subtypes of 

avian influenza occur in commercial 

table-egg layer flocks as described in 

paragraph (a)(1)(i) of this section, or if 

an infection spreads from the 

originating premises, the Service shall 

have grounds to revoke its 

determination that the State is entitled 

to this classification. Such action shall 

not be taken until a thorough 

investigation has been made by the 

Service and the Official State Agency 

has been given an opportunity for a 

hearing in accordance with rules of 

practice adopted by the Administrator. 

(b) [Reserved] 

Subpart C—Special Provisions for 

Meat-Type Chicken Slaughter Plants 

§ 146.31 Definitions. 

Meat-type chicken. A domesticated 

chicken grown for the primary purpose 

of producing meat, including but not 

limited to broilers, roasters, fryers, and 

cornish. 

Meat-type chicken slaughter plant. A 

meat-type chicken slaughter plant that 

is federally inspected or under State 

inspection that the Food Safety 

Inspection Service has recognized as 

equivalent to federal inspection. 

Shift. The working period of a group 

of employees who are on duty at the 

same time. 

§ 146.32 Participation. 

(a) Participating meat-type chicken 

slaughter plants shall comply with 

applicable general provisions of subpart 

A of this part and the special provisions 

of this subpart C. 

(b) Meat-type chicken slaughter plants 

that slaughter fewer than 200,000 meattype chickens in an operating week are 

exempt from the special provisions of 

this subpart C. 

§ 146.33 Terminology and classification; 

meat-type chicken slaughter plants. 

Participating meat-type chicken 

slaughter plants that have met the 

respective requirements specified in this 

section may be designated by the 

following terms and the corresponding 

designs illustrated in § 146.9 of this 

part: 

(a) U.S. H5/H7 Avian Influenza 

Monitored. This program is intended to 

be the basis from which the meat-type 

chicken industry may conduct a 

program to monitor for the H5/H7 

subtypes of avian influenza. It is 

intended to determine the presence of 

the H5/H7 subtypes of avian influenza 

in meat-type chickens through routine 

surveillance of each participating meattype chicken slaughter plant. A meattype chicken slaughter plant will qualify 

for this classification when the Official 

State Agency determines that it has met 

one of the following requirements: 

(1) It is a meat-type chicken slaughter 

plant where a minimum of 11 birds per 

shift are tested negative for antibodies to 

the H5/H7 subtypes of avian influenza 

at slaughter; Provided, that with the 

approval of the Official State Agency, 

fewer than 11 birds per shift may be 

tested on any given shift if the total 

number of birds tested during the 

operating month is equivalent to testing 

11 birds per shift; or 

(2) It is a meat-type chicken slaughter 

plant which accepts only meat-type 

chickens from flocks where a minimum 

of 11 birds have been tested negative for 

antibodies to the H5/H7 subtypes of 

avian influenza no more than 21 days 

prior to slaughter; or 

(3) It is a meat-type chicken slaughter 

plant that has an ongoing active and 

diagnostic surveillance program for the 

H5/H7 subtypes of avian influenza in 

which the number of birds tested is 

equivalent to the number required in 

paragraph (a)(1) or (a)(2) and that is 

approved by the Official State Agency 

and the Service. 

(b) [Reserved] 

Subpart D—Special Provisions for 

Meat-Type Turkey Slaughter Plants 

§ 146.41 Definitions. 

Meat-type turkey. A domesticated 

turkey grown for the primary purpose of 

producing meat. 

Meat-type turkey slaughter plant. A 

meat-type turkey slaughter plant that is 

federally inspected or under State 

inspection that the Food Safety 

Inspection Service has recognized as 

equivalent to federal inspection. 

§ 146.42 Participation. 

(a) Participating meat-type turkey 

slaughter plants shall comply with 

applicable general provisions of subpart 

A of this part and the special provisions 

of this subpart D. 

(b) Meat-type turkey slaughter plants 

that slaughter fewer than 2 million 

meat-type turkeys in a 12-month period 

are exempt from the special provisions 

of this subpart D. 

§ 146.43 Terminology and classification; 

meat-type turkey slaughter plants. 

Participating meat-type turkey 

slaughter plants which have met the 


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Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Rules and Regulations 56333 

respective requirements specified in this 

section may be designated by the 

following terms and the corresponding 

designs illustrated in § 146.9 of this 

part: 

(a) U.S. H5/H7 Avian Influenza 

Monitored. This program is intended to 

be the basis from which the meat-type 

turkey industry may conduct a program 

to monitor for the H5/H7 subtypes of 

avian influenza. It is intended to 

determine the presence of avian 

influenza in meat-type turkeys through 

routine surveillance of each 

participating meat-type turkey slaughter 

plant. A participating meat-type turkey 

slaughter plant will qualify for this 

classification when the Official State 

Agency determines that it has met one 

of the following requirements: 

(1) It is a meat-type turkey slaughter 

plant at which a sample of a minimum 

of 60 birds has tested negative each 

month for antibodies to type A avian 

influenza virus. Positive samples shall 

be further tested by an authorized 

laboratory using the hemagglutination 

inhibition test to detect antibodies to the 

hemagglutinin subtypes H5 and H7. It is 

recommended that samples be collected 

from flocks over 10 weeks of age with 

respiratory signs such as coughing, 

sneezing, snicking, sinusitis, or rales; 

depression; or decreases in food or 

water intake. 

(2) It is a meat-type turkey slaughter 

plant that has an ongoing active and 

diagnostic surveillance program for the 

H5/H7 subtypes of avian influenza in 

which the number of birds tested is 

equivalent to the number required in 

paragraph (a)(1) and that is approved by 

the Official State Agency and the 

Service. 

(b) [Reserved] 

§ 146.44 Terminology and classification; 

States. 

(a) U.S. H5/H7 Avian Influenza 

Monitored State, Turkeys. (1) A State 

will be declared a U.S. H5/H7 Avian 

Influenza Monitored State, Turkeys 

when it has been determined by the 

Service that: 

(i) All meat-type turkey slaughter 

plants within the State that are not 

exempt from the special provisions of 

this subpart D under § 146.42 are 

classified as U.S. H5/H7 Avian 

Influenza Monitored under § 146.43(a) 

of this part; 

(ii) All turkey breeding flocks in 

production within the State are 

classified as U.S. H5/H7 Avian 

Influenza Clean under § 145.43(g) of this 

subchapter; 

(iii) All persons performing poultry 

disease diagnostic services within the 

State are required to report to the 

Official State Agency, within 24 hours, 

the source of all meat-type turkey 

specimens that were deemed positive on 

an official test for avian influenza, as 

designated in § 146.13(a) of this chapter; 

(iv) All meat-type turkey specimens 

that were deemed positive on an official 

test for avian influenza, as designated in 

§ 146.13(a) of this chapter, are sent to an 

authorized laboratory for subtyping; and 

(v) All meat-type turkey flocks within 

the State that are found to be infected 

with the H5/H7 subtypes of avian 

influenza are quarantined, in 

accordance with an initial State 

response and containment plan as 

described in part 56 of this chapter, and 

under the supervision of the Official 

State Agency. 

(2) If there is a discontinuation of any 

of the conditions described in paragraph 

(a)(1) of this section, or if repeated 

outbreaks of the H5/H7 subtypes of 

avian influenza occur in meat-type 

turkey flocks as described in paragraph 

(a)(1)(i) of this section, or if an infection 

spreads from the originating premises, 

the Service shall have grounds to revoke 

its determination that the State is 

entitled to this classification. Such 

action shall not be taken until a 

thorough investigation has been made 

by the Service and the Official State 

Agency has been given an opportunity 

for a hearing in accordance with rules 

of practice adopted by the 

Administrator. 

PART 147—AUXILIARY PROVISIONS 

ON NATIONAL POULTRY 

IMPROVEMENT PLAN 

■ 9. The authority citation for part 147 

continues to read as follows: 

Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22, 

2.80, and 371.4. 

■ 10. Section 147.8 is amended as 

follows: 

■ a. In the introductory text, by 

removing the words ‘‘, and for’’ and 

adding the word ‘‘; for’’ in its place; and 

by adding the words ‘‘; and for retaining 

the classification U.S. H5/H7 Avian 

Influenza Monitored under § 146.23(a), 

§ 146.33(a), and § 146.44(a)’’ before the 

words ‘‘of this chapter’’. 

■ b. By revising paragraph (b)(7) to read 

as set forth below. 

§ 147.8 Procedures for preparing egg yolk 

samples for diagnostic tests. 

* * * * * 

(b) * * * 

(7) (i) For egg yolk samples being 

tested to retain the U.S. M. 

Gallisepticum Clean and U.S. M. 

Synoviae Clean classifications, test the 

resultant supernatant for M. 

gallisepticum and M. synoviae by using 

test procedures specified for detecting 

IgG antibodies set forth for testing serum 

in § 147.7 (for these tests the resultant 

supernatant would be substituted for 

serum); except that a single 1:20 

dilution hemagglutination inhibition 

(HI) test may be used as a screening test 

in accordance with the procedures set 

forth in § 147.7. 

(ii) For egg yolk samples being tested 

to retain the U.S. H5/H7 Avian 

Influenza Monitored classification, test 

the resultant supernatant in accordance 

with the requirements in § 146.13(b). 

Note: For evaluating the test results of any 

egg yolk test, it should be remembered that 

a 1:2 dilution of the yolk in saline was made 

of the original specimen. 

§ 147.45 [Amended] 

■ 11. Section 147.45 is amended by 

adding the words ‘‘and for each of the 

programs prescribed in subparts B, C, 

and D of part 146 of this chapter’’ after 

the word ‘‘chapter’’. 

■ 12. In § 147.46, paragraph (a) is 

revised to read as follows: 

§ 147.46 Committee consideration of 

proposed changes. 

(a) The following committees shall be 

established to give preliminary 

consideration to the proposed changes 

falling in their respective fields: 

(1) Egg-type breeding chickens. 

(2) Meat-type breeding chickens. 

(3) Breeding turkeys. 

(4) Breeding waterfowl, exhibition 

poultry, and game birds. 

(5) Breeding ostriches, emus, rheas, 

and cassowaries. 

(6) Egg-type commercial chickens. 

(7) Meat-type commercial chickens. 

(8) Meat-type commercial turkeys. 

* * * * * 

Done in Washington, DC, this 20th day of 

September 2006. 

Bruce Knight, 

Under Secretary, Marketing and Regulatory 

Programs. 

[FR Doc. 06–8155 Filed 9–25–06; 8:45 am] 

BILLING CODE 3410–34–P 


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