[Federal Register Volume 71, Number 186 (Tuesday, September 26, 2006)]
[Rules and Regulations]
[Pages 56302-56333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8155]



[[Page 56301]]

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Part IV





Department of Agriculture





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Animal and Plant Health Inspection Service



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



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

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

[[Page 56302]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

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

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


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

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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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 Federal-State-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, meat-type 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

[[Page 56303]]

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
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                        Location                               Year
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Pennsylvania, United States.............................       1983-1984
Mexico..................................................       1994-1995
Italy...................................................            1999
Chile...................................................            2002
British Columbia, Canada................................            2004
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    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\
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    \1\ The 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.
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    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
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                                                             Number of
                          Years                              outbreaks
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1955-1964...............................................               3
1965-1974...............................................               1
1975-1984...............................................               4
1985-1994...............................................               5
1995-2004...............................................              10
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                             Table 3.--Transmission of AI Virus From Birds to Humans
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                 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

[[Page 56304]]

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\
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    \2\ See ``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).
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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.
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    \3\ The recommendations may be viewed on the Internet at http://www.oie.int/eng/normes/mcode/en_-chapitre--2.7.12.htm.
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    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 Sec.  145.23(h); for meat-type 
chicken breeding flocks in Sec.  145.33(l); and for waterfowl, 
exhibition poultry, and game bird breeding flocks in Sec.  145.53(e). 
The Plan also provides for a ``U.S. H5/H7 Avian Influenza Clean'' 
classification for turkey breeding flocks in Sec.  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

[[Page 56305]]

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, meat-type 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, Sec.  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\
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    \4\ These 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.
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    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 table-egg 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.)
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    \5\ See the Terrestrial Animal Health Code General Definitions 
at http://www.oie.int/eng/normes/mcode/en_-chapitre--
1.1.1.htm#terme--compartiment.
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    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.

[[Page 56306]]

    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 meat-type 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 table-egg 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 
State-level 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,

[[Page 56307]]

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 Sec.  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

[[Page 56308]]

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 Sec.  
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 meat-type 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, meat-type 
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

[[Page 56309]]

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 indemnity-based 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 Sec.  
145.1. In addition, Sec.  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 meat-type 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

[[Page 56310]]

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.
---------------------------------------------------------------------------

    \6\ See David E. Swayne and Joan R. Beck, ``Experimental Study 
to Determine if Low-Pathogenicity 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.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 meat-type 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

[[Page 56311]]

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 Plan-approved 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 Sec.  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 non-participating 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 Sec.  147.21(c).
    These requirements are similar to requirements in Sec.  145.5(a). 
The provision requiring that participating flocks be separated from 
non-participating 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 meat-type 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, meat-type chicken and meat-
type turkey slaughter plants must follow the relevant special 
provisions for sample collection and flock monitoring in Sec. Sec.  
146.33(a) and 146.43(a), respectively, unless they are exempted from 
the special provisions under Sec. Sec.  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 Sec. Sec.  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

[[Page 56312]]

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 Sec. Sec.  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 Sec.  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 
Sec.  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 meat-type 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 meat-type 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 Sec.  147.8. Prior to the publication of this interim rule, Sec.  
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 Sec.  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 Sec.  
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

[[Page 56313]]

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 Sec.  146.10. The details of these requirements are set 
out in the rule portion of this document.
    Paragraph (b) of Sec.  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 Sec.  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 (Sec. Sec.  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 Sec.  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 Sec.  146.14 and 
inspections in accordance with Sec.  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 Sec.  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 Sec.  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

[[Page 56314]]

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.
---------------------------------------------------------------------------

    \7\ This plan, as well as the plans for meat-type chickens and 
meat-type turkeys discussed later in 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.
---------------------------------------------------------------------------

    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 Sec.  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 
Sec.  146.22 are classified as U.S. H5/H7 Avian Influenza Monitored 
under Sec.  146.23(a);
     All egg-type chicken breeding flocks in production within 
the State are classified as U.S. Avian Influenza Clean under Sec.  
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 
Sec.  146.13(a);
     All table-egg layer specimens that were deemed positive on 
an official test for AI, as designated in Sec.  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 Sec.  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 Meat-Type Chicken Slaughter Plants

    Subpart C (Sec. Sec.  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 Sec.  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 meat-type chicken 
slaughter plants are eligible to participate in the NPIP. We believe 
that diagnostic surveillance in accordance with Sec.  146.14 and 
inspections in accordance with Sec.  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 Sec.  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 Sec.  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

[[Page 56315]]

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 Meat-Type Turkeys

    Subpart D (Sec. Sec.  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 Sec.  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 meat-type turkey 
slaughter plants are eligible to participate in the NPIP. We believe 
that diagnostic surveillance in accordance with Sec.  146.14 and 
inspections in accordance with Sec.  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 Sec.  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 Sec.  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

[[Page 56316]]

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 Sec.  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 
Sec.  146.42 are classified as U.S. H5/H7 Avian Influenza Monitored 
under Sec.  146.43(a);
     All turkey breeding flocks in production within the State 
are classified as U.S. H5/H7 Avian Influenza Clean under Sec.  
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 
Sec.  146.13(a);
     All meat-type turkey specimens that were deemed positive 
on an official test for AI, as designated in Sec.  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 Sec.  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), meat-type 
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 Sec.  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

[[Page 56317]]

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 
Sec.  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 Sec.  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 Sec.  146.2, and is discussed in more detail under the 
heading ``Administration'' earlier in this document; we have included 
it in Sec.  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 Sec.  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 egg-layers, 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 meat-type 
turkey breeding flocks;
     The poultry are commercial table-egg 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 meat-type 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 meat-type 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

[[Page 56318]]

in which they participate does not participate in the NPIP diagnostic 
surveillance program for H5/H7 LPAI, as described in Sec.  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 Sec.  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 Sec.  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 Sec.  56.3, table-egg 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 meat-type 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 Sec.  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

[[Page 56319]]

to value commercial poultry in an H5/H7 LPAI outbreak, we would also 
require State official appraisers to use them whenever applicable.
---------------------------------------------------------------------------

    \8\ A 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.
---------------------------------------------------------------------------

    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 Sec.  56.5 and in the initial State response and 
containment plan described in Sec.  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 Sec.  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 Sec.  
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 Sec.  56.5 and in the 
initial State response and containment plan described in Sec.  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 Sec.  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 Sec.  56.5 and in the initial State 
response and containment plan described in Sec.  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 Sec.  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

[[Page 56320]]

     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 Sec.  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 Sec.  56.5 addresses controlled marketing. Under 
Sec.  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 Sec.  56.10; and
     Within 7 days prior to slaughter, each flock to be moved 
for controlled marketing must be tested for H5/H7 LPAI, using a test 
approved by the Cooperating State Agency, and found to be free of the 
virus. 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 56321]]

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, Sec.  56.8 provides that when poultry or eggs have been 
destroyed pursuant to part 56, the Administrator may pay claims to any 
party with which the owner of the poultry or eggs has entered into a 
contract for the growing or care of the poultry or eggs. Section 56.8 
also sets out a formula for calculating the proportion of indemnity 
paid to the owner of poultry or eggs destroyed under part 56 that may 
be paid to the contract grower:
     The value of the contract the owner of the poultry or eggs 
entered into with another party for the growing or care of the poultry 
or eggs in dollars is divided by the duration of the contract as it was 
signed prior to the H5/H7 LPAI outbreak in days.
     This figure is multiplied by the time in days between the 
date the other party began to provide services relating to the 
destroyed poultry or eggs under the contract and the date the birds 
were destroyed due to H5/H7 LPAI.
    If compensation is paid to a grower under 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 Sec.  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 Sec.  56.8, the owner of the poultry or 
eggs will be eligible to receive the difference between the indemnity 
paid to the growers and the total amount of indemnity that may be paid 
for the poultry or eggs.
    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 Sec.  56.4 and the 
owners have signed the appraisal form indicating agreement with the 
appraisal amount as required by Sec.  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 Sec.  
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;

[[Page 56322]]

     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 Sec.  146.24(a) or Sec.  146.44(a), it 
will lose that status during any outbreak of H5/H7 LPAI and for 90 days 
after the destruction and disposal of all infected or exposed birds and 
cleaning and disinfection of all affected premises are completed. If a 
State completes the actions required by the initial State response and 
containment plan, 90 days will provide adequate time to complete the 
post-outbreak 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 meat-type 
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 Sec.  147.46(a) by providing for 
the establishment of committees to give preliminary consideration to 
the proposed changes falling in their respective fields for egg-type 
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 USDA-Economic 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

[[Page 56323]]

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.


0
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

0
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.


Sec.  53.4  [Amended]

0
2. Section 53.4 is amended as follows:
0
a. In paragraph (a), by removing the third sentence.
0
b. In paragraph (a), in the fourth sentence, by removing the words ``or 
poultry.''
0
c. By removing and reserving paragraph (b).


Sec.  53.8  [Amended]

0
3. Section 53.8 is amended as follows:
0
a. In paragraph (a) introductory text, by removing the words ``Except 
for claims made under Sec.  53.11, claims'' and adding the word 
``Claims'' in their place.
0
b. By removing and reserving paragraph (b) and removing paragraph (c).


Sec.  53.11  [Removed]

0
4. Section 53.11 is removed.

0
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.


Sec.  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

[[Page 56324]]

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.


Sec.  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 
Sec.  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 
Sec.  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 Sec.  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 Sec.  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.


Sec.  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.

[[Page 56325]]

    (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 Sec.  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 Sec.  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 Sec.  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 Sec.  145.43(g) of this chapter; or
    (4) The poultry are commercial table-egg 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 Sec.  146.23(a) 
of this chapter; or
    (5) The poultry are commercial meat-type 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 Sec.  
146.33(a) of this chapter; or
    (6) The poultry are commercial meat-type 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 Sec.  
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 Sec.  146.14 of 
this chapter, or that does not have an initial State response and 
containment plan for H5/H7 LPAI that is approved by APHIS, 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 Sec.  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.


Sec.  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 Sec.  56.5 and in the initial State 
response and containment plan described in Sec.  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 Sec.  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 Sec.  56.5 and in the 
initial State response and containment plan described in Sec.  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

[[Page 56326]]

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 Sec.  56.5 and in the initial State 
response and containment plan described in Sec.  56.10.


Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 [deg]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 Sec.  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 Sec.  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

[[Page 56327]]

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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  56.10.


Sec.  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.


Sec.  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 APHIS-
furnished form, consenting to the payment of indemnity to the person 
specified on the form.


Sec.  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 Sec.  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 Sec.  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.


Sec.  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 Sec.  
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

[[Page 56328]]

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.


Sec.  56.10  Initial State response and containment plan.

    (a) In order for poultry owners within a State to be eligible for 
indemnity for 100 percent of eligible costs under Sec.  56.3(b), the 
State in which the poultry participate in the Plan must have in place 
an initial State response and containment plan that has been approved 
by APHIS. The initial State response and containment plan must be 
developed by the Official State Agency 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 
Sec.  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 Sec.  146.24(a) of this chapter or a U.S. Avian 
Influenza Monitored State, Turkeys under Sec.  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

0
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.


0
7. The part heading for part 145 is revised to read as set forth above.
0
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 Meat-Type Chicken Slaughter Plants
146.31 Definitions.
146.32 Participation.
146.33 Terminology and classification; meat-type chicken slaughter 
plants.
Subpart D--Special Provisions for Meat-Type 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


Sec.  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 Sec.  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.

[[Page 56329]]

    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 Sec.  
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 Sec.  
146.10(b) to perform functions under this part.
    United States. All of the States.


Sec.  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.


Sec.  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 meat-type 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:
[GRAPHIC] [TIFF OMITTED] TR26SE06.000

    (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.


Sec.  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

[[Page 56330]]

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-of-
State participants to ship into its State shall honor this number.


Sec.  146.5  Specific provisions for all participating flocks.

    (a) Participating flocks, and all equipment used in connection with 
the flocks, shall be separated from non-participating 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 Sec.  147.21(c) of this subchapter.


Sec.  146.6  Specific provisions for participating slaughter plants.

    (a) Only meat-type chicken and meat-type 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, meat-type chicken and meat-type 
turkey slaughter plants must follow the relevant special provisions in 
Sec. Sec.  146.33(a) and 146.43(a), respectively, for sample collection 
and flock monitoring, unless they are exempted from the special 
provisions under Sec. Sec.  146.32(b) or 146.42(b), respectively.


Sec.  146.7  Terminology and classification; general.

    The official classification terms defined in Sec. Sec.  146.8 and 
146.9 and the various designs illustrative of the official 
classifications reproduced in Sec.  146.9 may be used only by 
participants and to describe products that have met all of the specific 
requirements of such classifications.


Sec.  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.


Sec.  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 Sec. Sec.  
146.23(a), 146.33(a), and 146.43(a).)
[GRAPHIC] [TIFF OMITTED] TR26SE06.001

    (b) U.S. H5/H7 Avian Influenza Monitored State, Layers. (See Sec.  
146.24.)
[GRAPHIC] [TIFF OMITTED] TR26SE06.002

    (c) U.S. H5/H7 Avian Influenza Monitored State, Turkeys. (See Sec.  
146.44.)
[GRAPHIC] [TIFF OMITTED] TR26SE06.003

Sec.  146.10  Supervision.

    (a) The Official State Agency may designate qualified persons as 
Authorized Agents to do the sample collecting provided for in Sec.  
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.


Sec.  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.

[[Page 56331]]

Sec.  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]


Sec.  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 Sec.  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 Sec.  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.


Sec.  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


Sec.  146.21  Definitions.

    Table-egg layer. A domesticated chicken grown for the primary 
purpose of producing eggs for human consumption.


Sec.  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.


Sec.  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 Sec.  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

[[Page 56332]]

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]


Sec.  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 Sec.  146.22 are classified as U.S. H5/H7 Avian Influenza 
Monitored under Sec.  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 Sec.  
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 Sec.  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 Sec.  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


Sec.  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.


Sec.  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 meat-type chickens in an operating week are exempt from the 
special provisions of this subpart C.


Sec.  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 Sec.  
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 meat-type chicken slaughter plant. A meat-type 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


Sec.  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.


Sec.  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.


Sec.  146.43  Terminology and classification; meat-type turkey 
slaughter plants.

    Participating meat-type turkey slaughter plants which have met the

[[Page 56333]]

respective requirements specified in this section may be designated by 
the following terms and the corresponding designs illustrated in Sec.  
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]


Sec.  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 Sec.  
146.42 are classified as U.S. H5/H7 Avian Influenza Monitored under 
Sec.  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 Sec.  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 Sec.  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 Sec.  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

0
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.


0
10. Section 147.8 is amended as follows:
0
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 Sec.  146.23(a), Sec.  146.33(a), and Sec.  146.44(a)'' before 
the words ``of this chapter''.
0
b. By revising paragraph (b)(7) to read as set forth below.


Sec.  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 Sec.  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 Sec.  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 Sec.  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.

Sec.  147.45  [Amended]

0
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''.

0
12. In Sec.  147.46, paragraph (a) is revised to read as follows:


Sec.  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