[Federal Register Volume 68, Number 138 (Friday, July 18, 2003)]
[Rules and Regulations]
[Pages 42565-42570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18253]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 53

[Docket No. 02-048-2]
RIN 0579-AB46


Low Pathogenic Avian Influenza; Payment of Indemnity

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, with several changes, an 
interim rule that amended our general indemnity regulations by allowing 
the Department to pay indemnity to contract growers and owners for 
poultry destroyed because of low pathogenic avian influenza associated 
with a disease situation in Virginia. As amended by this document, 
payments may also be made for poultry destroyed because of low 
pathogenic avian influenza associated with a disease situation in 
Texas. Also, subject to available funding, the Department may pay up to 
75 percent of eligible total losses with contract growers being 
compensated at 100 percent of their losses and the remaining amount 
being paid to the owner of the flock. Additionally, this document makes 
eligible for compensation losses due to eggs and semen that were 
destroyed because of low pathogenic avian influenza associated with the 
disease situations in Virginia and Texas. These actions are necessary 
to provide appropriate compensation for losses incurred due to this 
disease.

EFFECTIVE DATE: July 18, 2003.

FOR FURTHER INFORMATION CONTACT: Dr. Cheryl Hall, Staff Veterinarian, 
National Center for Animal Health Programs, Certification and Control 
Team, VS, APHIS, 4700 River Road Unit 46, Riverdale, MD 20737-1231; 
(301) 734-4924.

SUPPLEMENTARY INFORMATION:

Background

    The Animal and Plant Health Inspection Service (APHIS) of the 
United States Department of Agriculture (the Department) administers 
regulations at 9 CFR part 53 (referred to below as the regulations) 
that provide for the payment of indemnity to owners of animals and 
materials that are required to be destroyed because of foot-and-mouth 
disease, pleuropneumonia, rinderpest, exotic Newcastle disease, highly 
pathogenic avian influenza, infectious salmon anemia, or any other 
communicable disease of livestock or poultry that, in the opinion of 
the Secretary of Agriculture, constitutes an emergency and threatens 
the U.S. livestock or poultry population. Payment for animals destroyed 
is to be based on the fair market value of the animals.

Payment of Indemnity

    Section 53.2 of the regulations authorizes the APHIS Administrator 
to cooperate with a State in the control and eradication of disease. 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), we amended the regulations to allow the Department to pay 
indemnity to contract growers and owners for poultry destroyed because 
of low pathogenic avian influenza (LPAI) associated with a disease 
situation in Virginia. We provided that, subject to available funding, 
the Department may pay all eligible losses of contract growers and up 
to 50 percent of eligible losses of owners, minus any amount paid to 
the contract grower of a flock. Additionally, we provided that value of 
poultry destroyed due to the disease may be determined after 
destruction and disposal of the poultry, and required, except in 
limited situations, a waiting period of 7 days following cleaning and 
disinfection before premises that contained poultry affected by the 
disease may be restocked.
    We solicited comments concerning the interim rule for 30 days 
ending December 4, 2002. We received 41 comments by that date. They 
were from poultry and egg producers, poultry federations, a farm bureau 
federation, a State Department of Agriculture, Federal and State 
congressional officials, and other members of the public. We have 
carefully considered all of the comments we received. They are 
discussed below by topic.

Recommendation That Indemnity Be Paid for a Disease Situation in Texas

    In April 2002, birds in a poultry operation in Texas were 
identified as being affected with the LPAI H5 virus. The disease was 
subsequently identified in another poultry operation in Texas. All of 
the affected flocks were depopulated. A number of commenters 
recommended that indemnity be paid to producers of poultry in Texas for 
losses incurred from the occurrence of LPAI in that State. Some of the 
commenters stated that the disease situation in Texas was not as 
widespread as in Virginia only because Texas producers had been 
voluntarily taking part in a testing

[[Page 42566]]

program, and that those producers should not be denied indemnity for 
losses simply because they took part in an effective program. The 
commenters stated that not compensating Texas producers would serve as 
a disincentive to take part in ongoing surveillance programs in the 
future.
    We recognize the proactive efforts of producers and animal health 
officials in Texas to contain and eradicate LPAI when it occurred in 
that State in 2002, and we recognize the effects on producers of the 
LPAI situation in Texas. In this final rule, we are amending the 
provisions in part 53 to allow the Administrator to pay claims for 
eligible losses incurred by owners and contract growers related to the 
2002 disease situation in Texas associated with the H5 virus. We will 
apply those payment conditions that we are applying to the disease 
situation in Virginia to the disease situation in Texas.

Flock Owners in North Carolina

    Several commenters requested similarly that compensation be paid to 
producers in North Carolina for losses due to LPAI.
    Our interim rule provided that the Department would pay 
compensation for birds in States other than Virginia if those birds 
were depopulated because of being epidemiologically linked to the 
situation in Virginia. Compensation has been paid for flocks in North 
Carolina epidemiologically linked to the situation in Virginia.

Percentage of Value Used for Compensation

    Several commenters requested that poultry owners be compensated at 
a rate higher than 50 percent of the value of poultry destroyed minus 
the amount paid to contract growers.
    In this final rule, we are providing that, subject to available 
funding, the Department may pay up to 75 percent of eligible total 
losses with contract growers being compensated at 100 percent of their 
eligible losses and the remaining amount being paid to the owner of the 
flock.

Payment for Eggs and Semen

    Several commenters requested that compensation be paid for 
destroyed eggs from affected premises, including destroyed hatching 
eggs that had been moved to a hatchery after the disease was detected 
on the premises but before the poultry from that premises were 
destroyed.
    We agree with the commenters that such losses should be eligible 
for compensation. Additionally, semen collected from or used in 
affected flocks poses a risk of transmitting the LPAI virus and should 
be destroyed as part of the eradication process. Therefore, we are 
providing in this final rule that compensation will be paid for eggs, 
as well as any poultry semen, destroyed because of LPAI associated with 
the disease situations in Virginia and Texas.

Miscellaneous Items

    One commenter expressed concern that the interim rule did not 
provide for payment for certain items other than poultry on affected 
premises. The commenter requested indemnity for feed and containers 
destroyed on affected premises. Additionally, the commenter requested 
compensation for custom-printed supplies that would not be used again 
because the destruction of birds and eggs would make it impossible to 
resume business operations. Other commenters requested compensation for 
feed used to sustain poultry from the time the disease was diagnosed on 
a premises until the time of depopulation and for poultry litter that 
could not be sold and moved from a quarantined premises.
    We are making no changes based on the comments. Under the interim 
rule, growers were compensated fully for production losses and owners 
were compensated in part for poultry destroyed because of LPAI. With 
regard to feed and other materials destroyed, it has historically not 
been the Department's policy to compensate for such materials that were 
not required to be destroyed by the Department, such as in the Virginia 
and Texas outbreaks, where actions to control and eradicate the disease 
were initiated by the States. Any decision to no longer use supplies 
that were not contaminated by the disease was a voluntary business 
decision by the entity involved. The issue of compensating for feed 
used to sustain poultry is further inapplicable because, for those 
poultry that were allowed to move to slaughtering establishments 
(controlled slaughter), owners recouped the cost of feed for the 
poultry. In cases where affected poultry did not go to controlled 
slaughter, the poultry were required to be destroyed within 24 hours of 
diagnosis. Litter in the affected area was permitted to be moved from 
the area after meeting requirements to ensure that it was not 
contaminated by the LPAI agent.

The LPAI Compensation Plan

    The interim rule based payments on the age (in weeks) of birds 
destroyed. Several commenters requested that the indemnification value 
of breeder flocks be calculated as of the date that the flock was 
diagnosed positive for LPAI, because, following that date, hatching 
eggs produced by the flock could not be moved from the premises. One 
commenter requested that, at the minimum, the value of a breeding bird 
be calculated as of the last full week of age of the bird before 
depopulation. For instance, it was requested that, if a flock was 44 
weeks and 5 days old when depopulated, we consider the age of that 
flock to be only 44 weeks. One commenter recommended that the per-bird 
value in the LPAI compensation plan be prorated to the day of the 
bird's age.
    We are making no changes based on the comments. We decided to be 
consistent with the method used to determine age, whether the birds 
were meat birds or breeding birds. We rounded up or down in standard 
fashion according to how old in days beyond a full week a bird was 
(e.g., a bird 1 week and 2 days old will be considered 1 week old; a 
bird 1 week and 5 days old will be considered 2 weeks old). Although 
meat birds and replacement breeders gain in value as they age, breeder 
birds lose value as they age. An attempt to consider birds in all cases 
to be only as old as the last full week would have provided 
overcompensation to some owners and undercompensation to others. 
Calculation of compensation of a large number of birds based on days of 
age would delay payments and increase taxpayer expense to process the 
claims, and, on the average, using daily values would not change the 
overall payment made.
    Several commenters stated that, practically speaking, the LPAI 
compensation plan bases payments to contract growers of breeder poultry 
on production records from one flock, whereas payments to growers of 
meat birds are based on an average of three to seven flocks. The 
commenters requested that a three-flock average be used to determine 
compensation for losses of breeder poultry.
    We would find it acceptable to use a three-flock average for 
breeder birds. If companies provide APHIS with breeder data for the 
past three flocks, then all three flocks can be used in estimating 
flock productivity.
    One commenter recommended that, in calculating a broiler breeder 
producer's projected flock income for the purposes of compensation, the 
previous three-flock income average be divided by the capitalized 
number of hens, and that the resulting payment per unit be multiplied 
by the capitalized number of hens in the LPAI-affected flock.

[[Page 42567]]

    We would find the method described by the commenter an acceptable 
method of calculating projected flock income, provided documentation is 
provided to support the numbers provided.
    One commenter asked whether any payment would be due a producer of 
broiler breeder birds if the age of the LPAI-affected flock was older 
than the average age of previous flocks.
    It is not clear to us what the commenter means. Payment will be 
calculated for contract growers based on the amount they received for 
previous flocks. Contract growers will be compensated at 100 percent of 
their eligible losses, minus any compensation they already received 
from the owner. One possible but unlikely scenario the commenter may be 
referring to would be based on the fact that producers of breeding eggs 
often receive payment during the production cycle. Thus, it is 
possible, if the depopulated flock had much greater productivity and 
lasted in production longer than previous flocks, for the payment 
already received from the owner to be greater than the average amount 
received from previous flocks. If such a situation occurred, then no 
additional compensation would be paid to the producer, because the 
producer would have already received payment equal to previous flocks.
    Several commenters stated that, under the interim rule, 
compensation would not be paid for male birds in broiler breeder flocks 
associated with the Virginia disease situation. The commenters 
requested that payment be made for such male birds disposed of due to 
the disease.
    The compensation plan for Virginia does take into account losses 
for male birds in broiler breeder flocks; however, that may not be 
immediately apparent. The per bird compensation value for breeder 
broilers is shown in Table 1 of that compensation plan. (The 
compensation plan can be accessed as an appendix to the full economic 
analysis of the interim rule at http://www.aphis.usda.gov/ppd/rad/avianecon.html.) An explanation of how to apply that value is set out 
in the compensation plan under the heading ``Female Breeder Birds (in 
lay), Table Egg Birds (in lay).'' See section XXVI, which states, ``Per 
bird compensation values for broiler breeders include the cost of 
males, thus bird count should be of hens only.'' In other words, the 
value given the hens takes into account the value of male birds in the 
flock.

Growers Who Cease Business

    One poultry owner stated that, in cases where a contract grower is 
ruled ineligible for payment because the grower did not adhere to the 
cleaning and disinfection requirements of the interim rule due to 
cessation of business, the poultry owner should nonetheless be 
compensated the total amount the owner is eligible to receive.
    In such a case, the owner would receive compensation for the total 
eligible losses. However, based on the information available to us, all 
growers have chosen to clean and disinfect affected premises.

Requests for Additional Compensation

    Several commenters requested that compensation be paid for income 
and production losses associated with delays in restocking a premises 
or neighboring premises after an LPAI test-positive flock had been 
depopulated and disposed of.
    We are making no changes based on the comments. It has 
traditionally been the policy of the Department not to pay for 
``downtime.''
    Several commenters requested that compensation be paid for the cost 
of cleaning and disinfecting affected premises.
    We are making no changes based on the comments. We consider the 
amounts that will be paid in accordance with the interim rule, as 
amended by this final rule, to be equitable compensation for losses 
incurred.
    Several commenters requested that compensation be paid for reduced 
income to producers whose flocks tested negative, but who, as a 
precautionary measure due to detection of the disease in premises in 
the area, sent the flocks to slaughter earlier and at less value than 
they would have normally.
    We recognize that some producers whose flocks were not affected 
chose to send their birds to slaughter due to detection of the disease 
in the area. However, APHIS, by law, may compensate only for birds and 
materials destroyed because they are considered to be infected with or 
exposed to the disease.

Payment for Poultry Linked to the Situation

    One commenter requested confirmation that compensation would be 
paid for losses incurred from the destruction of poultry in States 
other than Virginia that were epidemiologically linked to the Virginia 
situation.
    The commenter is correct in concluding that compensation will be 
paid for poultry in States other than Virginia that were destroyed 
because of an epidemiological link to the situation in Virginia.

Opposition to the Interim Rule

    One commenter opposed the payment of indemnity under the interim 
rule, stating that losses due to disease are normal costs of doing 
business for any livestock industry.
    We are making no changes based on this comment. In the event of a 
potentially serious disease situation, it is important to have a rapid, 
coordinated response by the public and private sectors in the early 
stages of the situation. The purpose of compensation is to remove 
possible sources of delay in eradicating the disease, such as grower 
and owner reluctance to report incidences of the diseases because of 
uncertainty about whether they will be compensated for losses.
    Therefore, for the reasons given in the interim rule and in this 
document, we are adopting the interim rule as a final rule, with the 
changes discussed in this document.
    This final rule also affirms the information contained in the 
interim rule concerning Executive Orders 12372 and 12988, and the 
Paperwork Reduction Act.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule are under review by the Office of Management and 
Budget under OMB control number 0579-0208.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734--7477.

Effective Date

    Pursuant to the administrative procedure provisions in 5 U.S.C. 
553, we find good cause for making this rule effective less than 30 
days after publication in the Federal Register. The interim rule 
adopted as final by this rule was effective on December 9, 2002. This 
rule expands and increases the compensation to be paid for losses 
associated with an LPAI situation in Virginia and allows compensation 
to be paid for losses associated with an LPAI

[[Page 42568]]

situation in Texas. Immediate action is warranted to expedite 
compensation of persons who incurred eligible losses due to the disease 
situations.

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.
    Below is the economic analysis of the changes in indemnity 
contained in this document with regard to LPAI in Virginia and Texas. 
Our November 4, 2002, interim rule included a summary of an initial 
regulatory flexibility analysis and cost-benefit analysis of the 
potential economic effects of the interim rule regarding the LPAI 
situation in Virginia. The full economic analysis for the interim rule, 
along with addendum for this final rule (the compensation plan for 
Texas), are available for review at http://www.aphis.usda.gov/ppd/rad/avianecon.html. This final economic analysis affirms the information 
contained in the economic analysis for the interim rule, with the 
changes discussed below.
    As amended by this document, subject to available funding, the 
Department may pay up to 75 percent of eligible total losses associated 
with LPAI outbreaks in Virginia and Texas, with contract growers being 
compensated at 100 percent of their eligible losses and the remaining 
amount being paid to the owner of the flock. However, total payments 
may not exceed 75 percent of all eligible costs. Additionally, this 
document makes eligible for compensation those losses incurred because 
of eggs and semen that were destroyed because of low pathogenic avian 
influenza associated with the disease situations in Virginia and Texas. 
These actions are necessary to provide appropriate compensation for 
losses incurred due to this disease.
    The interim rule provided for compensation of all eligible losses 
of contract growers and eligible losses of owners related to the LPAI 
situation in Virginia, up to 50 percent of the value of affected 
poultry. However, the interim rule, as does this final rule, provided 
that payments to owners would be net payments after payments to growers 
were subtracted. Changes in this final rule will have the effect of 
more fully compensating poultry owners for losses associated with the 
LPAI situations in Virginia and Texas.

Disease Situation in Virginia

    The economic analysis accompanying the interim rule estimated a 
total of $50.99 million in compensation due to the LPAI situation in 
Virginia, with $37.1 million going to owners and $13.9 million going to 
growers, based on the assumption that compensation would be paid for 
4.7 million birds depopulated. Fewer birds (3.7 million) were actually 
depopulated and eligible for compensation than had originally been 
predicted. Additionally, although the interim rule provided that total 
Federal payments would be reduced by any amounts paid by slaughtering 
establishments for birds sent to slaughter, the original compensation 
estimate did not assume that any such payments would occur. However, 
approximately $9 million was realized by the companies at controlled 
slaughter. Consequently, eligible losses were reduced by this amount 
and this reduction is reflected in the final rule.
    The numbers in Table 1, below, reflect more up-to-date and accurate 
information on numbers of birds depopulated and average payout per 
bird. Total payments due to the disease situation in Virginia are 
expected to be close to $52.4 million--which includes compensation for 
destroyed eggs ($1.6 million) and disposal costs ($7.7 million)--with 
approximately $47.8 million of the total going to owners and 
approximately $4.6 million going to growers. This information was 
current as of January 28, 2003. No substantial changes were expected 
after this date, although a few small claims could still be presented 
for payment.

                                 Table 1.--Disease Situation Related to Virginia
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                                                                                   Average  per
                                                                                       bird
                                                    Number  of       Number of     compensation
                                                       birds       birds sent to   value (based        Total
                                                    depopulated     controlled      on average     compensation
                                                                     slaughter     payout values
                                                                                    to date)**
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Chicken broilers (meat birds)...................         586,363         210,000           $1.12        $656,727
Chicken broiler breeders........................         533,715               0           12.00       6,404,580
Table egg layers................................          83,600               0            4.61         385,396
Turkey breeders*................................         171,990         140,300           58.70      22,836,456
Turkey meat birds...............................       2,328,321         625,680            5.50      12,805,766
Total birds.....................................       3,703,989         975,980  ..............      43,088,924
Eggs destroyed..................................  ..............  ..............  ..............       1,634,372
Disposal........................................  ..............  ..............  ..............       7,656,597
    Total.......................................  ..............  ..............  ..............     52,379,893
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*The only birds sent to controlled slaughter for which compensation was paid were turkey breeders. For breeder
  birds, USDA pays the difference between slaughter price and estimated bird value. Compensation is not paid for
  turkey or chicken meat birds sent to controlled slaughter.
** Dollar amounts are based on a 75 percent compensation rate.

    Under the final rule, growers continue to be compensated for 100 
percent of their losses. However, the total dollar amount expected to 
be paid to growers is less than had originally been anticipated. A 
number of factors are responsible for the lower total payment to 
growers.
    First, fewer grower farms were eligible for compensation. A 
significant number of meat birds went to controlled slaughter, plus 
fewer farms had contract growers than were initially assumed. In the 
original analysis, we assumed that every farm had a contract grower, 
but, in reality, this assumption holds true only for meat flocks. 
Breeder flocks, especially the more valuable turkey breeders, tend to 
be raised on company farms. Only 20 percent of turkey breeders were 
raised on grower farms.
    Second, the average actual per-bird payout to growers was less than 
estimated. Actual per-bird payout to growers depends on the age of the 
flock

[[Page 42569]]

in weeks and also historical payout records.
    Third, a few contract growers refused, for religious reasons, to 
accept payments from the Federal Government.

Disease Situation in Texas

    The LPAI situation in Texas differed from that in Virginia. Only 
two operations were affected in Texas. One was a single-site table egg 
producer; the other was a collection site for spent breeding hens 
obtained from commercial broiler breeders for subsequent sale to urban 
live bird markets. Birds owned by two poultry owners from the second 
operation were depopulated. Therefore, a total of three owners were 
directly affected in the Texas situation.
    As shown in Table 2, below, 238,838 birds were destroyed from the 
table egg operation. Using a compensation rate of 75 percent, 
compensation for those birds will total close to $430,000. With the 
addition of payment for disposal costs at a 75 percent rate, payments 
for this operation will total approximately $443,000. From the 
operation with the spent birds, the first party had 5,770 birds 
depopulated. The second party had 1,429 birds depopulated. Neither 
party incurred disposal costs. Total compensation for the spent bird 
operation will be approximately $10,800. Total compensation due to the 
LPAI situation in Texas will be approximately $453,800.

                                      Table 2.--Disease Situation in Texas
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                                                                     Number of     Average  per
                                                    Number  of     birds sent to       bird            Total
                                                       birds        controlled     compensation    compensation
                                                    depopulated      slaughter        value*
----------------------------------------------------------------------------------------------------------------
First Operation:
    Table egg layers............................         238,838               0           $1.80        $429,658
    Disposal....................................  ..............  ..............  ..............          13,365
Second Operation:
    First party (Spent birds)...................           5,770               0            1.50           8,665
    Second party (Spent birds)..................           1,429               0            1.50           2,144
        Total...................................  ..............  ..............  ..............        453,822
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*Dollar amounts are based on a 75 percent compensation rate.

Regulatory Flexibility Analysis--Potential Effect on Small Entities

    To the extent that the interim and final rules contribute to the 
elimination of LPAI in Virginia and Texas, all affected entities should 
benefit over the long term. In the short term, however, the economic 
effects will vary.
    In Virginia, five or six poultry companies/integrators who owned 
the affected poultry and 197 contract grower farm/flocks in the 
Shenandoah Valley of Virginia will be affected by the November 2002 
interim rule and this final rule. Three contract grower operations 
outside the Shenandoah Valley will also be affected. In addition, other 
entities not yet identified may be directly or indirectly affected by 
the disease event and/or the final rule. The poultry companies/
integrators that own the birds are all large, vertically integrated 
concerns that do not meet the Small Business Administration (SBA) 
small-entity criteria. It is unclear at this time exactly how many 
contract growers will qualify for consideration as small entities. The 
SBA defines small poultry operations as those earning gross per-farm 
receipts of no more than $750,000 annually.\1\
---------------------------------------------------------------------------

    \1\ Small Business Administration, http://www.SBA.gov/size. This 
includes small broiler operations (112320), small turkey operations 
(112330), small hatchery operations (112340), and other small 
poultry operations (112390).
---------------------------------------------------------------------------

    In Texas, the two owners of spent birds are most likely small 
entities. It is unclear whether the table egg producer is a small 
entity. In any case, all three parties will benefit from the 
compensation payments provided by this rule.

List of Subjects in 9 CFR Part 53

    Animal diseases, Indemnity payments, Livestock, Poultry and poultry 
products.


0
Accordingly, the interim rule amending 9 CFR part 53 that was published 
at 67 FR 67089-67096 on November 4, 2002, is adopted as a final rule 
with the following changes:

PART 53--FOOT-AND-MOUTH DISEASE, PLEUROPNEUMONIA, RINDERPEST, AND 
CERTAIN OTHER COMMUNICABLE DISEASES OF LIVESTOCK OR POULTRY

0
1. The authority citation for part 53 continues to read as follows:

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


0
2. In Sec.  53.4, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  53.4  Destruction of animals.

    (a) Except as provided in paragraph (b) of this section, animals 
infected with or exposed to disease shall be killed promptly after 
appraisal and disposed of by burial or burning, unless otherwise 
specifically provided by the Administrator, at his or her discretion. 
In the case of animals depopulated due to infectious salmon anemia, 
salvageable fish may be sold for rendering, processing, or any other 
purpose approved by the Administrator. In the case of poultry 
depopulated because of low pathogenic avian influenza related to the 
2002 disease situations in Virginia and Texas associated with the H5 or 
H7 virus, poultry may be slaughtered and sold. The proceeds gained from 
the sale of the fish or poultry will be subtracted from any payment 
from APHIS for which the producer or owner is eligible under Sec.  
53.2(b) or Sec.  53.11.
    (b) In the case of low pathogenic avian influenza related to the 
2002 disease situations in Virginia and Texas associated with the H5 or 
H7 virus, the value of poultry depopulated because of the disease may 
be calculated following destruction and disposal of the poultry, based 
on the number, type, and age of the animals destroyed.
* * * * *

0
3. Section 53.7 is revised to read as follows:


Sec.  53.7  Disinfection of premises, conveyances, and materials.

    All premises, including barns, corrals, stockyards and pens, and 
all cars, vessels, aircraft, and other conveyances, and the materials 
thereon, shall be cleaned and disinfected under supervision of an APHIS 
employee whenever necessary for the control and eradication of disease. 
Expenses incurred in connection with such cleaning and disinfection 
shall be shared according to the agreement

[[Page 42570]]

reached under Sec.  53.2 with the State in which the work is done. In 
the case of low pathogenic avian influenza related to the 2002 disease 
situations in Virginia and Texas associated with the H5 or H7 virus, 
premises may not be restocked with poultry until at least 7 days 
following such cleaning and disinfection, unless the Administrator 
determines that a shorter or longer period of time is adequate or 
necessary to protect new poultry against infection.

0
4. In Sec.  53.8, paragraphs (b) and (c) are revised to read as 
follows:


Sec.  53.8  Presentation of claims.

* * * * *
    (b) In the case of claims made under Sec.  53.11, claims for 
compensation for losses from poultry, eggs, and poultry semen destroyed 
or to be destroyed must be presented to APHIS, through the inspector in 
charge, on a form approved by the Administrator. The claim must specify 
the number, type, and age of the poultry; the number and type of eggs; 
and the type and amount of semen, as applicable.
    (c) To be considered by the Department, claims made under Sec.  
53.11 must be submitted to APHIS within 90 days after December 9, 2002, 
or the destruction of poultry, whichever is later, except that claims 
made for eggs or poultry semen, and claims made for other eligible 
losses associated with the disease situation in Texas, must be 
submitted to APHIS within 90 days after July 18, 2003 or the 
destruction of the eggs, semen, or poultry, whichever is later.
* * * * *

0
5. Section 53.11 is amended by revising the introductory text and 
paragraph (b) to read as follows:


Sec.  53.11  Payments arising from low pathogenic avian influenza; 
conditions for payment.

    In the case of low pathogenic avian influenza related to the 2002 
disease situations in Virginia and Texas associated with the H5 or H7 
virus, the Administrator may pay claims, subject to available funding, 
as follows:
* * * * *
    (b) For owners. The Administrator, in accordance with Sec.  53.4, 
may pay an owner up to 75 percent of the value of the poultry, eggs, 
and semen destroyed plus 75 percent of the costs of destruction and 
disposal of the poultry, eggs, and semen, in accordance with the LPAI 
compensation plan, minus the amount paid in accordance with paragraph 
(a) of this section to the contract grower of the poultry.
* * * * *

    Done in Washington, DC, this 14th day of July, 2003.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 03-18253 Filed 7-17-03; 8:45 am]
BILLING CODE 3410-34-P