Conditions for Payment of Highly Pathogenic Avian Influenza Indemnity Claims, 6745-6751 [2016-02530]
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Rules and Regulations
Federal Register
Vol. 81, No. 26
Tuesday, February 9, 2016
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
9 CFR Part 53
[Docket No. APHIS–2015–0061]
RIN 0579–AE14
Conditions for Payment of Highly
Pathogenic Avian Influenza Indemnity
Claims
Animal and Plant Health
Inspection Service, USDA.
ACTION: Interim rule and request for
comments.
AGENCY:
We are amending the
regulations pertaining to certain
diseases of livestock and poultry to
specify conditions for payment of
indemnity claims for highly pathogenic
avian influenza (HPAI). Specifically, we
are providing a formula that will allow
us to split such payments between
poultry and egg owners and parties with
which the owners enter into contracts to
raise or care for the eggs or poultry
based on the proportion of the
production cycle completed. This action
is necessary to ensure that all
contractors are compensated
appropriately. We are also providing for
the payment of indemnity for eggs
required to be destroyed due to HPAI,
thus clarifying an existing policy.
Finally, we are requiring owners and
contractors, unless specifically
exempted, to provide a statement that at
the time of detection of HPAI in their
facilities, they had in place and were
following a biosecurity plan aimed at
keeping HPAI from spreading to
commercial premises.
DATES: This interim rule is effective
February 9, 2016. We will consider all
comments that we receive on or before
April 11, 2016.
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SUMMARY:
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ADDRESSES:
You may submit comments
by either of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov/#!docket
Detail;D=APHIS-2015-0061.
• Postal Mail/Commercial Delivery:
Send your comment to Docket No.
APHIS–2015–0061, Regulatory Analysis
and Development, PPD, APHIS, Station
3A–03.8, 4700 River Road Unit 118,
Riverdale, MD 20737–1238.
Supporting documents and any
comments we receive on this docket
may be viewed at https://www.
regulations.gov/#!docketDetail;D=
APHIS-2015-0061 or in our reading
room, which 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) 799–7039 before
coming.
FOR FURTHER INFORMATION CONTACT: Dr.
Troy Bigelow, Senior Staff Veterinarian,
Surveillance, Preparedness and
Response Services; VS, APHIS, Federal
Building, Room 891, 210 Walnut Street,
Des Moines, IA 50309; (515) 284–4121.
SUPPLEMENTARY INFORMATION:
of animals and materials required to be
destroyed because of being
contaminated by or exposed to such
disease.
Section 53.3 provides for the
appraisal of such animals and materials.
Paragraph (a) of § 53.3 states that the
appraisals shall be carried out by an
APHIS employee and a representative of
the State jointly, or, if the State
authorities approve, by an APHIS
employee alone. Under § 53.3(b), the
appraisal must be based on the fair
market value and shall be determined
by the meat, egg production, dairy, or
breeding value of such animals.
Section 53.10 provides conditions
under which payments will not be made
on indemnity claims. Such conditions
include, but are not limited to,
noncompliance by the claimant with all
quarantine requirements, as well the
violation of laws, regulations, or
cooperative agreements pertaining to
movement or handling of animals by the
animals’ owner or employee or agent.
Payments will also be disallowed for
claims arising out of the destruction of
animals or materials if those animals
and materials have not been appraised
in accordance with part 53 or if the
owner has not executed a written
agreement to the appraisals.
Background
The Animal and Plant Health
Inspection Service (APHIS) of the
United States Department of Agriculture
(USDA or the Department) administers
regulations at 9 CFR part 53 (referred to
below as the regulations) that provide
for the payment of indemnity to owners
of animals that are required to be
destroyed because of foot-and-mouth
disease, pleuropneumonia, rinderpest,
Newcastle disease, highly pathogenic
avian influenza (HPAI), infectious
salmon anemia, or any other
communicable disease of livestock or
poultry that, in the opinion of the
Secretary of Agriculture, constitutes an
emergency and threatens the U.S.
livestock or poultry population.
Payment for animals destroyed is based
on the fair market value of the animals
at the time of their destruction.
Section 53.2 of the regulations
authorizes the APHIS Administrator to
cooperate with a State in the control and
eradication of disease. Paragraph (b) of
this section allows for the payment of
indemnity to cover the costs for
purchase, destruction, and disposition
Highly Pathogenic Avian Influenza
There are many strains of avian
influenza (AI) virus that can cause
varying degrees of clinical illness in
poultry. AI viruses can infect chickens,
turkeys, pheasants, quail, ducks, geese,
and guinea fowl, as well as a wide
variety of other birds. AI viruses can be
classified as highly pathogenic or low
pathogenic (LPAI) strains based on the
severity of the illness they cause. HPAI
is an extremely infectious and fatal form
of the disease that, once established, can
spread rapidly from flock to flock.
Certain strains of AI have the potential
to affect humans.
The U.S. poultry industry recently
experienced a severe outbreak of HPAI.
The outbreak was discovered in
December 2014 in backyard flocks in the
Pacific Northwest, and in two
commercial turkey and chicken flocks
in California. As of August 2015, 21
States had had HPAI detections in
backyard flocks, commercial premises,
captive wild birds, and/or wild birds.
Established U.S. animal health policy is
to eliminate notifiable AI virus (both
HPAI and LPAI strains), when it is
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found, through depopulation (i.e.,
destruction and disposal) of affected
poultry. APHIS, State, and local animal
health officials euthanize poultry, clean
and disinfect premises and equipment,
and then test for elimination of the virus
to ensure that farms can be safely
restocked.
Payment of Indemnity
During the 2014–2015 outbreak,
APHIS has been paying the full
indemnity amount to the birds’
owners—usually the poultry company—
with the understanding that parties that
have entered into contracts with the
owners to grow or care for the animals
would then be paid by the owner in
accordance with contractual
agreements. During the course of
addressing the current 2015 outbreak,
we determined that the existing
regulations in part 53 do not specify that
the indemnity be split between owners
and contractors. Since both owners and
contractors incur losses when a flock is
depopulated, both should be
compensated appropriately.
A similar gap in the regulations
concerning the payment of indemnity
for LPAI became an issue for APHIS
during an outbreak of LPAI in Virginia
in 2002. In an interim rule published in
the Federal Register on November 4,
2002, and effective December 9, 2002
(67 FR 67089–67096, Docket No. 02–
048–1), we amended the regulations to
allow the Department to pay indemnity
to both contract growers and owners for
poultry destroyed because of LPAI. That
interim rule was followed by a final rule
that provided for LPAI indemnity
payments to owners and contractors.
Following approval by delegates
during the 2004 National Poultry
Improvement Plan (NPIP) Conference,
APHIS amended the regulations via an
interim rule 1 effective and published in
the Federal Register on September 26,
2006 (71 FR 56302–56333, Docket No.
APHIS–2005–0109), to establish a
voluntary control program for the H5/
H7 subtypes of LPAI under the auspices
of the NPIP. Among other things, that
interim rule established a new 9 CFR
part 56 to provide for the payment of
indemnity for costs associated with the
eradication of H5/H7 LPAI.
First established under that interim
rule, § 56.8 contains conditions for
payments to flock owners and parties
with which the owners contracted to
grow and care for poultry and eggs. The
section provides a formula for the
distribution by APHIS of LPAI
1 To view the interim rule and the comments we
received, go to https://www.regulations.gov/#!docket
Detail;D=APHIS-2005-0109.
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indemnity payments between owners
and contractors.
Due to the absence, noted above, of a
provision in part 53 for split indemnity
payments prior to this interim rule,
there was the possibility of contractors
not being compensated for losses
incurred as a result of our HPAI control
efforts during the 2014–2015 outbreak.
APHIS believes 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
eradication of HPAI, as well as LPAI. In
this interim rule, therefore, we are
incorporating into the HPAI regulations
in part 53 conditions from the LPAI
regulations in § 56.8 for the splitting of
indemnity payments between owners
and contractors. Only those conditions
that are applicable to HPAI will be
incorporated into part 53. These
conditions are contained in a new
§ 53.11, titled ‘‘Highly pathogenic avian
influenza; conditions for payment.’’
Some of the text in the new section that
has been drawn from § 56.8 has been
edited slightly for clarity.
Paragraph (a) of 53.11 provides a
formula to enable the Administrator to
determine the share of the indemnity
payment that should be disbursed to the
contractor. This is a two-step process.
The dollar value of the contract the
owner entered into with the contractor
will be divided by the duration of the
contract in days as it was signed prior
to the HPAI outbreak. The resulting
figure will then be multiplied by the
time in days between the date the
contractor began to provide services
relating to the destroyed poultry or eggs
under the contract and the date the
poultry or eggs were destroyed.
Paragraph (b) states that if a contractor
has received any payment under his or
her contract from the owner of the
poultry or eggs at the time the poultry
or eggs are destroyed, the amount of
indemnity from APHIS for which the
contractor will be eligible will be
reduced by the amount of the payment
the contractor has already received from
the owner. This provision will ensure
that contractors will not receive
indemnity payments that exceed the fair
market value of the poultry or eggs.
Under § 53.11(c), if indemnity is paid
to a contractor, the owner of the poultry
or eggs will be eligible to receive the
difference between the indemnity paid
to the contractor and the total amount
of indemnity that may be paid for the
poultry or eggs. This provision ensures
that the owner will receive a fair share
of the indemnity.
Finally, § 53.11(d) states that if the
Administrator determines that the
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method described in § 53.11(a) for
determining the amount of indemnity to
be paid to a contractor, proves to be
impractical or inappropriate in a
particular case, APHIS may use any
other method that the Administrator
deems appropriate to determine the
amount of indemnity due a contractor.
This paragraph provides the
Administrator with the flexibility to
distribute indemnity payments
equitably between owner and contractor
in unusual or especially complex cases.
The above-listed conditions will
allow contractors, as well as poultry and
egg owners, to be compensated for
economic losses suffered due to the
destruction of poultry and eggs resulting
from HPAI outbreaks.
Prior to this interim rule, the
regulations in part 53 covered the
destruction and indemnification of eggs
under the general term ‘‘materials.’’
APHIS has covered eggs as being
materials. To provide greater clarity, we
are adding references to eggs to
§ 53.2(b), § 53.3(a), § 53.9, and § 53.10(c)
and (d).
We are also adding a new paragraph
(e) to § 53.3, pertaining to the appraisal
of the value of eggs destroyed due to
HPAI. As is the case for the animals
themselves, under § 53.3(e), indemnity
payments for eggs required to be
destroyed due to HPAI will be based on
the fair market value of the eggs, as
determined by an appraisal. Appraisals
will be reported on forms furnished by
APHIS. The amount of indemnity paid,
together with the amount for net salvage
the owner or contractor received, if any,
may not exceed the appraised fair
market value of the eggs. Salvage refers
to any payment the owner or contractor
may receive from a third party, such as
a breaker facility for the eggs. Such
facilities may purchase the eggs and
then pasteurize them to kill the HPAI
virus, so that the eggs can be used in
food products. APHIS will subtract the
amount of any such payments made to
the owners or contractors from the
indemnity amount paid out by APHIS.
In addition, because § 53.4 has not
specifically provided for the destruction
of eggs pursuant to the eradication of
HPAI, we are adding a new paragraph
(b) (currently reserved) to that section.
The paragraph states that eggs infected
with, exposed to, or contaminated by
HPAI shall be disposed of pursuant to
the regulations in part 53 under the
supervision of an APHIS employee who
shall prepare and transmit to the
Administrator a report identifying all
eggs disposed thereof.
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Federal Register / Vol. 81, No. 26 / Tuesday, February 9, 2016 / Rules and Regulations
Biosecurity
In some instances during the 2014–
2015 outbreak, poor biosecurity
practices may have led to HPAI
introduction or spread within and
among some commercial poultry
facilities. More specifically, as
discussed in our July 2015 report on
HPAI-infected flocks (https://www.
aphis.usda.gov/animal_health/animal_
dis_spec/poultry/downloads/
Epidemiologic-Analysis-June-152015.pdf), the existing level of
biosecurity appears to have failed to
protect layer and turkey facilities in the
upper Midwest from HPAI. In our view,
the biosecurity of layer, turkey, and
broiler facilities needs to be enhanced to
avoid future catastrophic outbreaks of
HPAI.
As a step toward achieving the goal of
enhancing biosecurity, this interim rule
requires both owners of poultry or eggs
and contractors to provide to APHIS a
statement that at the time of detection
of HPAI in their facilities, they had in
place and were following a biosecurity
plan. Indemnity claims will be denied if
the owner or contractor, unless
exempted, does not provide such a
statement. This requirement will be
placed in a new paragraph (g) to be
added to § 53.10, the section in part 53
that covers claims not allowed
Paragraph (g)(1) contains a list of
several measures that a biosecurity plan
should include in order to be effective
at preventing the introduction of HPAI
to a poultry facility. First, personnel
working at such a facility should be
given appropriate biosecurity training
and should be subject to certain
biosecurity requirements, e.g.,
showering and changing upon, or prior
to arriving at, the facility. The
biosecurity plan should also include
measures to prevent HPAI introduction
via vehicles and equipment. A ‘‘line of
separation’’ should be maintained,
beyond which nothing should cross that
could introduce the virus to poultry
houses. Measures to control wild birds,
rodents, and insects should be
implemented, and the facility should
have a source of clean water. More
detailed information regarding these
biosecurity measures for poultry
facilities can be found at https://iastate.
app.box.com/Biosec-Officer-InfoManual. Educational and training
materials for poultry-industry personnel
are available at https://www.poultry
biosecurity.org/.
The inclusion of the measures
discussed above in an HPAI biosecurity
plan is supported by the findings of our
September 2015 report on HPAIinfected flocks (https://www.aphis.usda.
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gov/animal_health/animal_dis_spec/
poultry/downloads/EpidemiologicAnalysis-September2015.pdf). For
example, in that report, statistical
evidence was found that having visitors
follow biosecurity protocols, such as
changing clothes before entering a barn,
and having premises personnel disinfect
barn entry areas were both associated
with a lowered risk of introducing HPAI
to the premises.
Under paragraph (g)(2), owners and
contractors will be exempted from the
requirement to submit a biosecurity
statement if their facilities fall under
one of the following categories:
Premises covered under the NPIP
regulations in 9 CFR 146.22(b)
(commercial table-egg laying premises
with fewer than 75,000 birds) or
§ 146.52(b) (raised for release upland
game bird and waterfowl premises that
raise fewer than 25,000 birds annually)
and premises where fewer than 100,000
broilers or 30,000 turkeys are raised for
meat annually. Exempting such
facilities will allow APHIS to
concentrate on helping large
commercial facilities with their
biosecurity activities. These larger
operations were hardest hit by the 2015
outbreak, and are in the best position to
address biosecurity issues. More than 99
percent of broilers are raised on farms
with more than 100,000 birds, and 97
percent of turkeys are raised on farms
with more than 30,000 birds. In
addition, the smaller facilities that we
are exempting from the requirement are
less likely to have HPAI outbreaks than
are the non-exempt ones. On smaller
facilities, birds density tends to be less
which minimizes overall viral load.
Additionally, if a smaller facility was
identified with HPAI the disease is less
likely to spread outward to other
premises because there are fewer birds,
vehicles, pieces of equipment, and
employees moving onto and off of the
smaller, exempted facilities when
compared to the larger, non-exempted
ones.
To facilitate owners’ and contractors’
biosecurity planning, APHIS has created
and distributed biosecurity training
materials, which include specific
examples of approaches to developing
and implementing biosecurity protocols
for the various types of commercial
poultry operations. Further, we are
increasing outreach to all producers—
large, small and backyard—to educate
them about biosecurity plans and how
they can be implemented at the local
level.
APHIS is phasing in implementation
and documentation of enhanced
biosecurity through a biosecurity selfassessment. Initially, commercial
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poultry owners and contractors will be
asked to voluntarily self-assess, whether
their operations have implemented the
measures in a general biosecurity
checklist developed by APHIS (https://
www.uspoultry.org/animal_husbandry/
assessment.cfm). Next, each owner and/
or contractor should develop a riskbased, site-specific biosecurity plan that
includes standard operating procedures
and a site-specific checklist. This step
will be followed by the development of
a plan for Federal, State, or industry-led
oversight of the biosecurity plan and a
mechanism for verification. We
welcome comments from the public
regarding the development of
procedures for the oversight and
verification of the biosecurity plan.
Miscellaneous
In addition to adding the references to
eggs to § 53.2(b), we are making a couple
of minor edits to the paragraph for the
sake of clarity. We are incorporating
footnote 1 into the text and editing one
clause of the paragraph that, as written,
could be interpreted as referring to the
ineligibility of the animals covered by
the paragraph, rather than their owners,
to receive indemnity payments. The
clause has been revised for accuracy,
and we have also added a reference to
contractors, in keeping with the other
changes we are making to part 53.
Emergency Action
This rulemaking is necessary on an
emergency basis to provide timely and
equitable compensation to owners and
contractors for flocks destroyed due to
the disease, which may reoccur in 2016.
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 rule
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 Orders 12866 and 13563 and
Regulatory Flexibility Act
This interim 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 interim rule. The
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economic analysis provides a costbenefit analysis, as required by
Executive Orders 12866 and 13563,
which direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, and equity). Executive Order
13563 emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. The
economic analysis also provides an
initial regulatory flexibility analysis that
examines the potential economic effects
of this rule on small entities, as required
by the Regulatory Flexibility Act. The
economic analysis is summarized
below. The full analysis may be viewed
on the Regulations.gov Web site (see
ADDRESSES above for instructions for
accessing Regulations.gov) or obtained
from the person listed under FOR
FURTHER INFORMATION CONTACT.
APHIS is amending the regulations to
include conditions for the splitting of
HPAI indemnity payments when
multiple parties are involved in order to
ensure that all parties who suffer losses
resulting from the destruction of poultry
or eggs due to HPAI are compensated
and compensation is distributed to
parties who suffer losses based on the
terms of the contract. The vast majority
of contracts are expected to reflect the
relative level of inputs or investments of
the parties who suffer losses. This
interim rule also clarifies that APHIS
will pay indemnity for eggs destroyed
due to HPAI and requires owners and
contractors, unless exempted because
their facilities are small, to provide a
statement that at the time of detection
of HPAI in their facilities, they had in
place and were following a written
biosecurity plan to address the potential
spread of HPAI.
The entities affected by this interim
rule will be U.S. facilities primarily
engaged in breeding, hatching, and
raising poultry for meat or egg
production, and facilities primarily
engaged in slaughtering poultry. There
were about 25,000 farms categorized as
breeding, hatching, or raising poultry for
meat production, about 28,000 farms
categorized as egg producers, and 517
poultry processors in the 2012
Agricultural Census. In particular, this
rule will affect poultry owners and
contractors who produce poultry under
production contracts. It is estimated that
97 percent of broilers were raised on
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production contract operations in 2011.2
Of the farms producing broilers and
other meat-type chickens, about 15,350
accounted for more than 99 percent of
the total number of broilers sold in 2012
according to the Agricultural Census.
The United States is the world’s
largest poultry producer and the secondlargest egg producer. The combined
value of production from broilers, eggs,
turkeys, and the value of sales from
chickens in 2014 was $48.3 billion, up
9 percent from $44.4 billion in 2013. Of
the combined total, 68 percent was from
broilers, 21 percent from eggs, 11
percent from turkeys, and less than 1
percent from chickens.3 Broiler
production, valued at over 50 billion
pounds per year, is concentrated in a
group of States stretching from
Delaware, south along the Atlantic coast
to Georgia, then westward through
Alabama, Mississippi, and Arkansas.
The U.S. turkey industry produces over
one-quarter of a billion birds annually.
Production of turkeys is somewhat more
scattered geographically than broiler
production, with Minnesota, North
Carolina, Missouri, Arkansas and
Virginia the top five turkey-producing
States. U.S. laying hen operations
produce over 90 billion eggs annually.
The top five egg-producing States are
Iowa, Ohio, Pennsylvania, Indiana, and
Texas.
In 2014, the United States exported
nearly 4 million metric tons (MT) of
poultry meat valued at about $5 billion.
The vast majority of exports consisted of
chicken meat. Export demand for U.S.
broiler products has fluctuated over the
last several years because of changing
economic conditions and currency
exchange rates. Since the first HPAI
findings in December 2014, a number of
trading partners have imposed complete
or partial bans on shipments of U.S.
poultry and products.
Broilers account for nearly all U.S.
chicken consumption. Broiler
production and processing occurs
within highly integrated production
systems. Owners of the processing
facilities own, as well, the birds that are
processed and contract with growers
(contractors) to raise those birds before
processing. The top 20 owners together
accounted for 94 percent of all broilers
produced in the United States in 2012,
and the top 3 accounted for 49 percent.
Expanded broiler production has been
made possible to a large extent by the
vertically integrated production system
and through the use of production
contracts. Almost all commercial
operations raising broilers are contract
growers.4
Under the system of production
contracts, the contractor normally
supplies the grow-out house with all the
necessary heating, cooling, feeding, and
watering systems. The contractor also
supplies the labor needed in growing
the birds. The owner normally supplies
the chicks, feed, veterinary medicines
and transportation. Contractors have
exclusive contracts with an owner and
receive payment for the services that
they provide, with premiums and
discounts tied to the efficiency with
which feed is converted to live-weight
broilers, the minimization of mortality,
or the number of eggs produced.
Specific contract terms and the period
covered can vary.
Embedded in the value of a bird at
any point in time is the value of inputs
by both parties. Contractors’ costs are
more or less fixed and are heavily
committed early in the production
cycle. Investments in poultry housing
cannot be shifted readily to other
farming activities.
Currently, indemnity payments go
directly to the owner of the birds who,
depending on the terms of the
contractual arrangement, might or might
not compensate the contractor. It is
important to formalize provisions to
share indemnity payments between
poultry owners and contractors, both of
whom have productive assets imbedded
in the value of the bird. When USDA
pays to compensate owners and
contractors for losses, that
compensation should be distributed to
parties who suffer losses based on the
terms of the contract.
APHIS’ determination of the total
amount of indemnity will remain the
same under the interim rule as at
present, based on the appraised value of
the bird or eggs, the number of birds
depopulated or eggs destroyed, and the
age of the birds when depopulated.
However, to determine the appropriate
payment split between owner and
contractor, APHIS may have to examine
contract specifics on a case-by-case
basis. This interim rule will not change
the total amount of compensation paid
in a given situation, but will ensure
timely distribution of that compensation
between the owner and contractor. This
interim rule will benefit contractors
who otherwise may suffer
uncompensated economic losses from
participating in an eradication program.
2 2011 USDA Agricultural Resource Management
Survey, Version 4.
3 USDA, NASS. Poultry Production and Value,
2014 Summary. April 2015.
4 MacDonald, J.M. Technology, Organization, and
Financial Performance in U.S. Broiler Production,
EIB–126 USDA Economic Research Service. June
2014.
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To date, the generic term ‘‘materials’’
within the existing regulations in part
53 has been used to provide for
indemnification for eggs required to be
destroyed pursuant to HPAI eradication
efforts. This rule will specify
appropriate references to eggs, and a
description of the appraisal of the value
of eggs destroyed due to HPAI to the
regulations. The rule will therefore
simply clarify existing practice for the
indemnification of destroyed eggs and
will not change the total amount of any
compensation paid in a given future
situation.
The vast majority of contractors have
some level of biosecurity in place on
their operations. This rule will require
large owners and contractors to provide
a statement that a written biosecurity
plan was in place and was followed if
HPAI is detected at their facilities.
There are approximately 18,900 poultry
operations that will be subject to this
requirement. Many operations will need
to review their existing biosecurity
plans, and some will need to newly
develop plans. We estimate that the
development of a biosecurity plan could
cost between about $525 and $700,
while the review of an existing plan
could cost about $70. If 5 percent of
producers need to newly develop
biosecurity plans and 95 percent need to
review existing biosecurity plans, the
total one-time cost for all producers
could be between $1.7 million and $1.9
million.
Most producers should be readily able
to affirm that they were following a
biosecurity plan in the case of an HPAI
incident. We estimate that an owner or
contractor will need at most about 0.25
to 0.50 hours to comply with this
affirmation requirement, at a cost of
$8.73 to $17.45 per occurrence. The
total cost of this affirmation requirement
will depend on the number of producers
affected by a given HPAI outbreak who
submit paperwork to receive indemnity.
If a given outbreak were to affect 100
flocks, the total cost of this affirmation
requirement would be from about $900
to $1,800 and if a given outbreak were
to affect 500 flocks, the total cost would
be from about $4,400 to $8,800 when
rounded up to the nearest hundred.5
It should be noted that these total cost
estimates are limited to the cost of
developing or reviewing biosecurity
plans and providing a statement
attesting that a biosecurity plan was in
place and followed. Because this rule
does not require the implementation of
specific biosecurity measures, the costs
5 One hundred flocks * $8.73 = $873, 100 flocks
* $17.45 = $1,745, 500 flocks * $8.73 = $4,365 and
500 flocks * $17.45 = $8,725.
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associated with implementing new
biosecurity measures are not included
in these totals. We expect that most
producers already have or will
voluntarily adopt new biosecurity
measures prior to the interim rule
becoming effective.
APHIS is distributing biosecurity
training materials that include specific
examples of approaches to developing
and implementing biosecurity protocols
for various types of commercial poultry
operations. APHIS is phasing in
enhanced biosecurity initially through
voluntary self-assessments. Results of
self-assessments in the fall of 2015 show
that a significant majority of poultry
producers have in place or are in the
process of implementing a variety of
recommended biosecurity practices.
Development, following public input, of
Federal, State or industry-led oversight
and verification will follow.
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 2 CFR
chapter IV.)
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 (OMB). When OMB notifies
us of its decision, we will publish a
document in the Federal Register
providing notice of the assigned OMB
control number.
Please send written comments on the
information collection and
recordkeeping requirements included in
this interim rule to the following
addresses: (1) Office of Information and
Regulatory Affairs, OMB, Attention:
Desk Officer for APHIS, Washington, DC
20503; and (2) Docket No. APHIS–2015–
0061, Regulatory Analysis and
Development, PPD, APHIS, Station 3A–
03.8, 4700 River Road, Unit 118,
Riverdale, MD 20737–1238. Please state
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6749
that your comments refer to Docket No.
APHIS–2015–0061 and send your
comments within 60 days of publication
of this rule.
This interim rule establishes
regulations to provide for the equitable
distribution of indemnity payment to
owners and contractors by the
Department for the depopulation of
poultry and destruction of eggs known
to be infected with HPAI and to require
that, in order to receive indemnity
payments, owners and contractors,
unless specifically exempted, must
submit a statement indicating that they
had in place and were following a
biosecurity plan at the time of HPAI
detection in their facilities. In addition
to submitting the biosecurity statement,
owners and contractors must sign a
payment, appraisal and agreement form
and must certify as to whether any other
parties hold mortgages on the flock.
This interim rule also clarifies that eggs
are a commodity eligible for indemnity.
We are soliciting comments from the
public (as well as affected agencies)
concerning our information collection
and recordkeeping requirements. These
comments will help us:
(1) Evaluate whether the information
collection is necessary for the proper
performance of our agency’s functions,
including whether the information will
have practical utility;
(2) Evaluate the accuracy of our
estimate of the burden of the
information collection, including the
validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
information collection on those who are
to respond (such as through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
information technology; e.g., permitting
electronic submission of responses).
Estimate of burden: Public reporting
burden for this collection of information
is estimated to average 1.626 hours per
response.
Respondents: States; Poultry and egg
owners and contractors.
Estimated annual number of
respondents: 35,925.
Estimated annual number of
responses per respondent: 1.9336.
Estimated annual number of
responses: 69,456.
Estimated total annual burden on
respondents: 112,950 hours. (Due to
averaging, the total annual burden hours
may not equal the product of the annual
number of responses multiplied by the
reporting burden per response.)
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Copies of this information collection
can be obtained from Ms. Kimberly
Hardy, APHIS’ Information Collection
Coordinator, at (301) 851–2727.
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 interim rule, please contact Ms.
Kimberly Hardy, APHIS’ Information
Collection Coordinator, at (301) 851–
2727.
List of Subjects in 9 CFR Part 53
Animal diseases, Indemnity
payments, Livestock, Poultry and
poultry products.
Accordingly, we are amending 9 CFR
part 53 as follows:
PART 53—FOOT-AND-MOUTH
DISEASE, PLEUROPNEUMONIA,
RINDERPEST, AND CERTAIN OTHER
COMMUNICABLE DISEASES OF
LIVESTOCK OR POULTRY
1. The authority citation for part 53
continues to read as follows:
■
Authority: 7 U.S.C. 8301–8317; 7 CFR
2.22, 2.80, and 371.4.
2. In § 53.2, paragraph (b) is revised to
read as follows:
■
§ 53.2 Determination of existence of
disease; agreements with States.
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*
*
*
*
*
(b) Upon agreement of the authorities
of the State to enforce quarantine
restrictions and orders and directives
properly issued in the control and
eradication of such a disease, the
Administrator is hereby authorized to
agree, on the part of the Department, to
cooperate with the State in the control
and eradication of the disease, and to
pay 50 percent (and in the case of
Newcastle disease or highly pathogenic
avian influenza, up to 100 percent, and
in the case of infectious salmon anemia,
up to 60 percent) of the expenses of
purchase, destruction and disposition of
animals, eggs, and materials required to
be destroyed because of being
contaminated by or exposed to such
disease: Provided, however, that if the
animals or eggs were exposed to such
disease prior to or during interstate
movement and the owners or parties
contracting with the owners to raise or
care for the animals or eggs are not
eligible to receive indemnity from any
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State, the Department may pay up to
100 percent of the purchase,
destruction, and disposition of animals,
eggs, and materials required to be
destroyed; Provided further, that the
cooperative program for the purchase,
destruction, and disposition of birds
shall be limited to birds which are
identified in documentation pursuant to
Agreements between the Department
and the particular State involved
relating to cooperative animal
(including poultry) disease prevention,
control, and eradication, as constituting
a threat to the poultry industry of the
United States; And provided further,
that the Secretary may authorize other
arrangements for the payment of such
expenses upon finding that an
extraordinary emergency exists.
■ 3. Section § 53.3 is amended as
follows:
■ a. By revising the section heading.
■ b. In paragraph (a), by adding the
words ‘‘or eggs’’ after the word
‘‘Animals’’.
■ c. By adding paragraph (e).
The addition and revision read as
follows:
§ 53.3 Appraisal of animals, eggs, or
materials.
*
*
*
*
*
(e) Indemnity for eggs required to be
destroyed due to an outbreak of highly
pathogenic avian influenza will be
based on the fair market value of the
eggs, as determined by an appraisal.
Appraisals of eggs shall be reported on
forms furnished by APHIS. The amount
of indemnity paid, together with the
amount for net salvage the owner or
contractor received, if any, shall not
exceed the appraised fair market value
of the eggs.
■ 4. Section 53.4 is amended as follows:
■ a. By revising the section heading.
■ b. By adding paragraph (b).
The addition and revision read as
follows:
§ 53.4
Destruction of animals or eggs.
*
*
*
*
*
(b) Eggs infected with, exposed to, or
contaminated by highly pathogenic
avian influenza shall be disposed of
pursuant to the regulations in this part
under the supervision of an APHIS
employee who shall prepare and
transmit to the Administrator a report
identifying all eggs disposed thereof.
*
*
*
*
*
■ 5. Section 53.9 is amended as follows:
■ a. The section heading is revised.
■ b. By adding the word ‘‘, eggs,’’ after
the word ‘‘animals’’ each time it
appears.
The revision reads as follows:
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§ 53.9 Mortgage against animals, eggs, or
materials.
*
*
*
*
*
6. Section 53.10 is amended as
follows:
■ a. In paragraphs (c) and (d), by adding
the word ‘‘, eggs,’’ after the word
‘‘animals’’ each time it appears.
■ b. By adding paragraph (g).
The addition reads as follows:
■
§ 53.10
Claims not allowed.
*
*
*
*
*
(g) The Department will not allow
claims arising out of the destruction of
animals or eggs destroyed due to an
outbreak of highly pathogenic avian
influenza unless the owner of the
animals or eggs and any party that
enters into a contract with the owners
to grow or care for the poultry or eggs,
unless exempted under paragraph (g)(2)
of this section, provide to APHIS a
statement that at the time of detection
of highly pathogenic avian influenza in
the facility, the owner and contractor (if
applicable), had in place and was
following a biosecurity plan.
(1) The biosecurity plan should
include the following:
(i) A biosecurity training program for
premises/farm personnel;
(ii) Biosecurity protocols for
personnel;
(iii) Procedures to control wild birds,
rodents, and insects to reduce the risk
of introduction or spread of HPAI;
(iv) Measures taken to prevent HPAI
introduction via vehicles and
equipment;
(v) Maintenance of a line of
separation; and
(vi) A clean water source for the
facility.
(2) Owners and contractors are
exempted from the requirements of
paragraph (g)(1) of this section if the
facilities where the animals or eggs are
raised or cared for falls under one of the
following categories:
(i) Premises meeting the criteria of the
National Poultry Improvement Plan
regulations in §§ 146.22(b) or 146.52(c)
of this chapter;
(ii) Premises on which fewer than
100,000 broilers are raised annually;
and
(iii) Premises on which fewer than
30,000 meat turkeys are raised annually.
*
*
*
*
*
■ 7. Section 53.11 is added to read as
follows:
§ 53.11 Highly pathogenic avian influenza;
conditions for payment.
(a) When poultry or eggs have been
destroyed pursuant to this part, the
Administrator may pay claims to any
party with whom the owner of the
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Federal Register / Vol. 81, No. 26 / Tuesday, February 9, 2016 / Rules and Regulations
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 by the
following method:
(1) Divide the value in dollars of the
contract the owner entered into with the
contractor by the duration in days of the
contract as it was signed prior to the
highly pathogenic avian influenza
outbreak;
(2) Multiply this figure by the time in
days between the date the contractor
began to provide services relating to the
destroyed poultry or eggs under the
contract and the date the poultry or eggs
were destroyed due to highly
pathogenic avian influenza.
(b) If a contractor receiving indemnity
under this section has received any
payment under his or her contract from
the owner of the poultry or eggs at the
time the poultry or eggs are destroyed,
the amount of indemnity for which the
contractor is eligible will be reduced by
the amount of the payment the
contractor has already received.
(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 contractors and the total
amount of indemnity that may be paid
for the poultry or eggs.
(d) In the event that determination of
indemnity due a contractor 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.
Done in Washington, DC, this 3rd day of
February 2016.
Gary Woodward,
Deputy Under Secretary for Marketing and
Regulatory Programs.
[FR Doc. 2016–02530 Filed 2–8–16; 8:45 am]
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BILLING CODE 3410–34–P
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2016–2843; Directorate
Identifier 2015–SW–003–AD; Amendment
39–18392; AD 2016–03–05]
RIN 2120–AA64
Airworthiness Directives; Airbus
Helicopters Deutschland GmbH
Helicopters
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule; request for
comments.
AGENCY:
We are superseding
airworthiness directive (AD) 2014–13–
01 for Airbus Helicopters Deutschland
GmbH (Airbus Helicopters) Model
MBB–BK 117 C–2 helicopters with a
certain Goodrich rescue hoist damper
unit (damper unit) installed. AD 2014–
13–01 required repairing or replacing
the damper unit or deactivating the
rescue hoist. AD 2014–13–01 was
prompted by a report of an
uncommanded detachment of a damper
unit from the cable. This new AD
retains the optional requirement of
deactivating the rescue hoist, expands
the applicability, and requires either
replacing or modifying the damper unit
with a newly developed single-piece
retainer. These actions are intended to
prevent the hoist damper unit detaching
from the cable resulting in loss of an
external load or person from the
helicopter hoist and injury to persons
being lifted by the hoist.
DATES: This AD becomes effective
February 24, 2016.
The Director of the Federal Register
approved the incorporation by reference
of certain documents listed in this AD
as of February 24, 2016.
We must receive comments on this
AD by April 11, 2016.
ADDRESSES: You may send comments by
any of the following methods:
• Federal eRulemaking Docket: Go to
https://www.regulations.gov. Follow the
online instructions for sending your
comments electronically.
• Fax: 202–493–2251.
• Mail: Send comments to the U.S.
Department of Transportation, Docket
Operations, M–30, West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE., Washington,
DC 20590–0001.
• Hand Delivery: Deliver to the
‘‘Mail’’ address between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
SUMMARY:
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6751
Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2016–
2843; or in person at the Docket
Operations Office between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays. The AD docket
contains this AD, the European Aviation
Safety Agency (EASA) AD, any
incorporated by reference service
information, the economic evaluation,
any comments received, and other
information. The street address for the
Docket Operations Office (telephone
800–647–5527) is in the ADDRESSES
section. Comments will be available in
the AD docket shortly after receipt.
For service information identified in
this final rule, contact Airbus
Helicopters, 2701 N. Forum Drive,
Grand Prairie, TX 75052; telephone
(972) 641–0000 or (800) 232–0323; fax
(972) 641–3775; or at https://www.airbus
helicopters.com/techpub. You may
review the referenced service
information at the FAA, Office of the
Regional Counsel, Southwest Region,
10101 Hillwood Pkwy., Room 6N–321,
Fort Worth, TX 76177.
FOR FURTHER INFORMATION CONTACT:
David N. Hatfield, Aviation Safety
Engineer, Safety Management Group,
Rotorcraft Directorate, FAA, 10101
Hillwood Pkwy., Fort Worth, TX 76177;
telephone (817) 222–5110; email
david.hatfield@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
This AD is a final rule that involves
requirements affecting flight safety, and
we did not provide you with notice and
an opportunity to provide your
comments prior to it becoming effective.
However, we invite you to participate in
this rulemaking by submitting written
comments, data, or views. We also
invite comments relating to the
economic, environmental, energy, or
federalism impacts that resulted from
adopting this AD. The most helpful
comments reference a specific portion of
the AD, explain the reason for any
recommended change, and include
supporting data. To ensure the docket
does not contain duplicate comments,
commenters should send only one copy
of written comments, or if comments are
filed electronically, commenters should
submit them only one time. We will file
in the docket all comments that we
receive, as well as a report summarizing
each substantive public contact with
FAA personnel concerning this
rulemaking during the comment period.
We will consider all the comments we
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Agencies
[Federal Register Volume 81, Number 26 (Tuesday, February 9, 2016)]
[Rules and Regulations]
[Pages 6745-6751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02530]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 81, No. 26 / Tuesday, February 9, 2016 /
Rules and Regulations
[[Page 6745]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 53
[Docket No. APHIS-2015-0061]
RIN 0579-AE14
Conditions for Payment of Highly Pathogenic Avian Influenza
Indemnity Claims
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: We are amending the regulations pertaining to certain diseases
of livestock and poultry to specify conditions for payment of indemnity
claims for highly pathogenic avian influenza (HPAI). Specifically, we
are providing a formula that will allow us to split such payments
between poultry and egg owners and parties with which the owners enter
into contracts to raise or care for the eggs or poultry based on the
proportion of the production cycle completed. This action is necessary
to ensure that all contractors are compensated appropriately. We are
also providing for the payment of indemnity for eggs required to be
destroyed due to HPAI, thus clarifying an existing policy. Finally, we
are requiring owners and contractors, unless specifically exempted, to
provide a statement that at the time of detection of HPAI in their
facilities, they had in place and were following a biosecurity plan
aimed at keeping HPAI from spreading to commercial premises.
DATES: This interim rule is effective February 9, 2016. We will
consider all comments that we receive on or before April 11, 2016.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov/#!docketDetail;D=APHIS-2015-0061.
Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2015-0061, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
Supporting documents and any comments we receive on this docket may
be viewed at https://www.regulations.gov/#!docketDetail;D=APHIS-2015-
0061 or in our reading room, which 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) 799-7039 before coming.
FOR FURTHER INFORMATION CONTACT: Dr. Troy Bigelow, Senior Staff
Veterinarian, Surveillance, Preparedness and Response Services; VS,
APHIS, Federal Building, Room 891, 210 Walnut Street, Des Moines, IA
50309; (515) 284-4121.
SUPPLEMENTARY INFORMATION:
Background
The Animal and Plant Health Inspection Service (APHIS) of the
United States Department of Agriculture (USDA or the Department)
administers regulations at 9 CFR part 53 (referred to below as the
regulations) that provide for the payment of indemnity to owners of
animals that are required to be destroyed because of foot-and-mouth
disease, pleuropneumonia, rinderpest, Newcastle disease, highly
pathogenic avian influenza (HPAI), infectious salmon anemia, or any
other communicable disease of livestock or poultry that, in the opinion
of the Secretary of Agriculture, constitutes an emergency and threatens
the U.S. livestock or poultry population. Payment for animals destroyed
is based on the fair market value of the animals at the time of their
destruction.
Section 53.2 of the regulations authorizes the APHIS Administrator
to cooperate with a State in the control and eradication of disease.
Paragraph (b) of this section allows for the payment of indemnity to
cover the costs for purchase, destruction, and disposition of animals
and materials required to be destroyed because of being contaminated by
or exposed to such disease.
Section 53.3 provides for the appraisal of such animals and
materials. Paragraph (a) of Sec. 53.3 states that the appraisals shall
be carried out by an APHIS employee and a representative of the State
jointly, or, if the State authorities approve, by an APHIS employee
alone. Under Sec. 53.3(b), the appraisal must be based on the fair
market value and shall be determined by the meat, egg production,
dairy, or breeding value of such animals.
Section 53.10 provides conditions under which payments will not be
made on indemnity claims. Such conditions include, but are not limited
to, noncompliance by the claimant with all quarantine requirements, as
well the violation of laws, regulations, or cooperative agreements
pertaining to movement or handling of animals by the animals' owner or
employee or agent. Payments will also be disallowed for claims arising
out of the destruction of animals or materials if those animals and
materials have not been appraised in accordance with part 53 or if the
owner has not executed a written agreement to the appraisals.
Highly Pathogenic Avian Influenza
There are many strains of avian influenza (AI) virus that can cause
varying degrees of clinical illness in poultry. AI viruses can infect
chickens, turkeys, pheasants, quail, ducks, geese, and guinea fowl, as
well as a wide variety of other birds. AI viruses can be classified as
highly pathogenic or low pathogenic (LPAI) strains based on the
severity of the illness they cause. HPAI is an extremely infectious and
fatal form of the disease that, once established, can spread rapidly
from flock to flock. Certain strains of AI have the potential to affect
humans.
The U.S. poultry industry recently experienced a severe outbreak of
HPAI. The outbreak was discovered in December 2014 in backyard flocks
in the Pacific Northwest, and in two commercial turkey and chicken
flocks in California. As of August 2015, 21 States had had HPAI
detections in backyard flocks, commercial premises, captive wild birds,
and/or wild birds. Established U.S. animal health policy is to
eliminate notifiable AI virus (both HPAI and LPAI strains), when it is
[[Page 6746]]
found, through depopulation (i.e., destruction and disposal) of
affected poultry. APHIS, State, and local animal health officials
euthanize poultry, clean and disinfect premises and equipment, and then
test for elimination of the virus to ensure that farms can be safely
restocked.
Payment of Indemnity
During the 2014-2015 outbreak, APHIS has been paying the full
indemnity amount to the birds' owners--usually the poultry company--
with the understanding that parties that have entered into contracts
with the owners to grow or care for the animals would then be paid by
the owner in accordance with contractual agreements. During the course
of addressing the current 2015 outbreak, we determined that the
existing regulations in part 53 do not specify that the indemnity be
split between owners and contractors. Since both owners and contractors
incur losses when a flock is depopulated, both should be compensated
appropriately.
A similar gap in the regulations concerning the payment of
indemnity for LPAI became an issue for APHIS during an outbreak of LPAI
in Virginia in 2002. In an interim rule published in the Federal
Register on November 4, 2002, and effective December 9, 2002 (67 FR
67089-67096, Docket No. 02-048-1), we amended the regulations to allow
the Department to pay indemnity to both contract growers and owners for
poultry destroyed because of LPAI. That interim rule was followed by a
final rule that provided for LPAI indemnity payments to owners and
contractors.
Following approval by delegates during the 2004 National Poultry
Improvement Plan (NPIP) Conference, APHIS amended the regulations via
an interim rule \1\ effective and published in the Federal Register on
September 26, 2006 (71 FR 56302-56333, Docket No. APHIS-2005-0109), to
establish a voluntary control program for the H5/H7 subtypes of LPAI
under the auspices of the NPIP. Among other things, that interim rule
established a new 9 CFR part 56 to provide for the payment of indemnity
for costs associated with the eradication of H5/H7 LPAI.
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\1\ To view the interim rule and the comments we received, go to
https://www.regulations.gov/#!docketDetail;D=APHIS-2005-0109.
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First established under that interim rule, Sec. 56.8 contains
conditions for payments to flock owners and parties with which the
owners contracted to grow and care for poultry and eggs. The section
provides a formula for the distribution by APHIS of LPAI indemnity
payments between owners and contractors.
Due to the absence, noted above, of a provision in part 53 for
split indemnity payments prior to this interim rule, there was the
possibility of contractors not being compensated for losses incurred as
a result of our HPAI control efforts during the 2014-2015 outbreak.
APHIS believes 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 eradication of
HPAI, as well as LPAI. In this interim rule, therefore, we are
incorporating into the HPAI regulations in part 53 conditions from the
LPAI regulations in Sec. 56.8 for the splitting of indemnity payments
between owners and contractors. Only those conditions that are
applicable to HPAI will be incorporated into part 53. These conditions
are contained in a new Sec. 53.11, titled ``Highly pathogenic avian
influenza; conditions for payment.'' Some of the text in the new
section that has been drawn from Sec. 56.8 has been edited slightly
for clarity.
Paragraph (a) of 53.11 provides a formula to enable the
Administrator to determine the share of the indemnity payment that
should be disbursed to the contractor. This is a two-step process. The
dollar value of the contract the owner entered into with the contractor
will be divided by the duration of the contract in days as it was
signed prior to the HPAI outbreak. The resulting figure will then be
multiplied by the time in days between the date the contractor began to
provide services relating to the destroyed poultry or eggs under the
contract and the date the poultry or eggs were destroyed.
Paragraph (b) states that if a contractor has received any payment
under his or her contract from the owner of the poultry or eggs at the
time the poultry or eggs are destroyed, the amount of indemnity from
APHIS for which the contractor will be eligible will be reduced by the
amount of the payment the contractor has already received from the
owner. This provision will ensure that contractors will not receive
indemnity payments that exceed the fair market value of the poultry or
eggs.
Under Sec. 53.11(c), if indemnity is paid to a contractor, the
owner of the poultry or eggs will be eligible to receive the difference
between the indemnity paid to the contractor and the total amount of
indemnity that may be paid for the poultry or eggs. This provision
ensures that the owner will receive a fair share of the indemnity.
Finally, Sec. 53.11(d) states that if the Administrator determines
that the method described in Sec. 53.11(a) for determining the amount
of indemnity to be paid to a contractor, proves to be impractical or
inappropriate in a particular case, APHIS may use any other method that
the Administrator deems appropriate to determine the amount of
indemnity due a contractor. This paragraph provides the Administrator
with the flexibility to distribute indemnity payments equitably between
owner and contractor in unusual or especially complex cases.
The above-listed conditions will allow contractors, as well as
poultry and egg owners, to be compensated for economic losses suffered
due to the destruction of poultry and eggs resulting from HPAI
outbreaks.
Prior to this interim rule, the regulations in part 53 covered the
destruction and indemnification of eggs under the general term
``materials.'' APHIS has covered eggs as being materials. To provide
greater clarity, we are adding references to eggs to Sec. 53.2(b),
Sec. 53.3(a), Sec. 53.9, and Sec. 53.10(c) and (d).
We are also adding a new paragraph (e) to Sec. 53.3, pertaining to
the appraisal of the value of eggs destroyed due to HPAI. As is the
case for the animals themselves, under Sec. 53.3(e), indemnity
payments for eggs required to be destroyed due to HPAI will be based on
the fair market value of the eggs, as determined by an appraisal.
Appraisals will be reported on forms furnished by APHIS. The amount of
indemnity paid, together with the amount for net salvage the owner or
contractor received, if any, may not exceed the appraised fair market
value of the eggs. Salvage refers to any payment the owner or
contractor may receive from a third party, such as a breaker facility
for the eggs. Such facilities may purchase the eggs and then pasteurize
them to kill the HPAI virus, so that the eggs can be used in food
products. APHIS will subtract the amount of any such payments made to
the owners or contractors from the indemnity amount paid out by APHIS.
In addition, because Sec. 53.4 has not specifically provided for
the destruction of eggs pursuant to the eradication of HPAI, we are
adding a new paragraph (b) (currently reserved) to that section. The
paragraph states that eggs infected with, exposed to, or contaminated
by HPAI shall be disposed of pursuant to the regulations in part 53
under the supervision of an APHIS employee who shall prepare and
transmit to the Administrator a report identifying all eggs disposed
thereof.
[[Page 6747]]
Biosecurity
In some instances during the 2014-2015 outbreak, poor biosecurity
practices may have led to HPAI introduction or spread within and among
some commercial poultry facilities. More specifically, as discussed in
our July 2015 report on HPAI-infected flocks (https://www.aphis.usda.gov/animal_health/animal_dis_spec/poultry/downloads/Epidemiologic-Analysis-June-15-2015.pdf), the existing level of
biosecurity appears to have failed to protect layer and turkey
facilities in the upper Midwest from HPAI. In our view, the biosecurity
of layer, turkey, and broiler facilities needs to be enhanced to avoid
future catastrophic outbreaks of HPAI.
As a step toward achieving the goal of enhancing biosecurity, this
interim rule requires both owners of poultry or eggs and contractors to
provide to APHIS a statement that at the time of detection of HPAI in
their facilities, they had in place and were following a biosecurity
plan. Indemnity claims will be denied if the owner or contractor,
unless exempted, does not provide such a statement. This requirement
will be placed in a new paragraph (g) to be added to Sec. 53.10, the
section in part 53 that covers claims not allowed
Paragraph (g)(1) contains a list of several measures that a
biosecurity plan should include in order to be effective at preventing
the introduction of HPAI to a poultry facility. First, personnel
working at such a facility should be given appropriate biosecurity
training and should be subject to certain biosecurity requirements,
e.g., showering and changing upon, or prior to arriving at, the
facility. The biosecurity plan should also include measures to prevent
HPAI introduction via vehicles and equipment. A ``line of separation''
should be maintained, beyond which nothing should cross that could
introduce the virus to poultry houses. Measures to control wild birds,
rodents, and insects should be implemented, and the facility should
have a source of clean water. More detailed information regarding these
biosecurity measures for poultry facilities can be found at https://iastate.app.box.com/Biosec-Officer-Info-Manual. Educational and
training materials for poultry-industry personnel are available at
https://www.poultrybiosecurity.org/.
The inclusion of the measures discussed above in an HPAI
biosecurity plan is supported by the findings of our September 2015
report on HPAI-infected flocks (https://www.aphis.usda.gov/animal_health/animal_dis_spec/poultry/downloads/Epidemiologic-Analysis-September2015.pdf). For example, in that report, statistical evidence
was found that having visitors follow biosecurity protocols, such as
changing clothes before entering a barn, and having premises personnel
disinfect barn entry areas were both associated with a lowered risk of
introducing HPAI to the premises.
Under paragraph (g)(2), owners and contractors will be exempted
from the requirement to submit a biosecurity statement if their
facilities fall under one of the following categories: Premises covered
under the NPIP regulations in 9 CFR 146.22(b) (commercial table-egg
laying premises with fewer than 75,000 birds) or Sec. 146.52(b)
(raised for release upland game bird and waterfowl premises that raise
fewer than 25,000 birds annually) and premises where fewer than 100,000
broilers or 30,000 turkeys are raised for meat annually. Exempting such
facilities will allow APHIS to concentrate on helping large commercial
facilities with their biosecurity activities. These larger operations
were hardest hit by the 2015 outbreak, and are in the best position to
address biosecurity issues. More than 99 percent of broilers are raised
on farms with more than 100,000 birds, and 97 percent of turkeys are
raised on farms with more than 30,000 birds. In addition, the smaller
facilities that we are exempting from the requirement are less likely
to have HPAI outbreaks than are the non-exempt ones. On smaller
facilities, birds density tends to be less which minimizes overall
viral load. Additionally, if a smaller facility was identified with
HPAI the disease is less likely to spread outward to other premises
because there are fewer birds, vehicles, pieces of equipment, and
employees moving onto and off of the smaller, exempted facilities when
compared to the larger, non-exempted ones.
To facilitate owners' and contractors' biosecurity planning, APHIS
has created and distributed biosecurity training materials, which
include specific examples of approaches to developing and implementing
biosecurity protocols for the various types of commercial poultry
operations. Further, we are increasing outreach to all producers--
large, small and backyard--to educate them about biosecurity plans and
how they can be implemented at the local level.
APHIS is phasing in implementation and documentation of enhanced
biosecurity through a biosecurity self-assessment. Initially,
commercial poultry owners and contractors will be asked to voluntarily
self-assess, whether their operations have implemented the measures in
a general biosecurity checklist developed by APHIS (https://www.uspoultry.org/animal_husbandry/assessment.cfm). Next, each owner
and/or contractor should develop a risk-based, site-specific
biosecurity plan that includes standard operating procedures and a
site-specific checklist. This step will be followed by the development
of a plan for Federal, State, or industry-led oversight of the
biosecurity plan and a mechanism for verification. We welcome comments
from the public regarding the development of procedures for the
oversight and verification of the biosecurity plan.
Miscellaneous
In addition to adding the references to eggs to Sec. 53.2(b), we
are making a couple of minor edits to the paragraph for the sake of
clarity. We are incorporating footnote 1 into the text and editing one
clause of the paragraph that, as written, could be interpreted as
referring to the ineligibility of the animals covered by the paragraph,
rather than their owners, to receive indemnity payments. The clause has
been revised for accuracy, and we have also added a reference to
contractors, in keeping with the other changes we are making to part
53.
Emergency Action
This rulemaking is necessary on an emergency basis to provide
timely and equitable compensation to owners and contractors for flocks
destroyed due to the disease, which may reoccur in 2016. 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 rule
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 Orders 12866 and 13563 and Regulatory Flexibility Act
This interim 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 interim rule. The
[[Page 6748]]
economic analysis provides a cost-benefit analysis, as required by
Executive Orders 12866 and 13563, which direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility. The
economic analysis also provides an initial regulatory flexibility
analysis that examines the potential economic effects of this rule on
small entities, as required by the Regulatory Flexibility Act. The
economic analysis is summarized below. The full analysis may be viewed
on the Regulations.gov Web site (see ADDRESSES above for instructions
for accessing Regulations.gov) or obtained from the person listed under
FOR FURTHER INFORMATION CONTACT.
APHIS is amending the regulations to include conditions for the
splitting of HPAI indemnity payments when multiple parties are involved
in order to ensure that all parties who suffer losses resulting from
the destruction of poultry or eggs due to HPAI are compensated and
compensation is distributed to parties who suffer losses based on the
terms of the contract. The vast majority of contracts are expected to
reflect the relative level of inputs or investments of the parties who
suffer losses. This interim rule also clarifies that APHIS will pay
indemnity for eggs destroyed due to HPAI and requires owners and
contractors, unless exempted because their facilities are small, to
provide a statement that at the time of detection of HPAI in their
facilities, they had in place and were following a written biosecurity
plan to address the potential spread of HPAI.
The entities affected by this interim rule will be U.S. facilities
primarily engaged in breeding, hatching, and raising poultry for meat
or egg production, and facilities primarily engaged in slaughtering
poultry. There were about 25,000 farms categorized as breeding,
hatching, or raising poultry for meat production, about 28,000 farms
categorized as egg producers, and 517 poultry processors in the 2012
Agricultural Census. In particular, this rule will affect poultry
owners and contractors who produce poultry under production contracts.
It is estimated that 97 percent of broilers were raised on production
contract operations in 2011.\2\ Of the farms producing broilers and
other meat-type chickens, about 15,350 accounted for more than 99
percent of the total number of broilers sold in 2012 according to the
Agricultural Census.
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\2\ 2011 USDA Agricultural Resource Management Survey, Version
4.
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The United States is the world's largest poultry producer and the
second-largest egg producer. The combined value of production from
broilers, eggs, turkeys, and the value of sales from chickens in 2014
was $48.3 billion, up 9 percent from $44.4 billion in 2013. Of the
combined total, 68 percent was from broilers, 21 percent from eggs, 11
percent from turkeys, and less than 1 percent from chickens.\3\ Broiler
production, valued at over 50 billion pounds per year, is concentrated
in a group of States stretching from Delaware, south along the Atlantic
coast to Georgia, then westward through Alabama, Mississippi, and
Arkansas. The U.S. turkey industry produces over one-quarter of a
billion birds annually. Production of turkeys is somewhat more
scattered geographically than broiler production, with Minnesota, North
Carolina, Missouri, Arkansas and Virginia the top five turkey-producing
States. U.S. laying hen operations produce over 90 billion eggs
annually. The top five egg-producing States are Iowa, Ohio,
Pennsylvania, Indiana, and Texas.
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\3\ USDA, NASS. Poultry Production and Value, 2014 Summary.
April 2015.
---------------------------------------------------------------------------
In 2014, the United States exported nearly 4 million metric tons
(MT) of poultry meat valued at about $5 billion. The vast majority of
exports consisted of chicken meat. Export demand for U.S. broiler
products has fluctuated over the last several years because of changing
economic conditions and currency exchange rates. Since the first HPAI
findings in December 2014, a number of trading partners have imposed
complete or partial bans on shipments of U.S. poultry and products.
Broilers account for nearly all U.S. chicken consumption. Broiler
production and processing occurs within highly integrated production
systems. Owners of the processing facilities own, as well, the birds
that are processed and contract with growers (contractors) to raise
those birds before processing. The top 20 owners together accounted for
94 percent of all broilers produced in the United States in 2012, and
the top 3 accounted for 49 percent.
Expanded broiler production has been made possible to a large
extent by the vertically integrated production system and through the
use of production contracts. Almost all commercial operations raising
broilers are contract growers.\4\
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\4\ MacDonald, J.M. Technology, Organization, and Financial
Performance in U.S. Broiler Production, EIB-126 USDA Economic
Research Service. June 2014.
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Under the system of production contracts, the contractor normally
supplies the grow-out house with all the necessary heating, cooling,
feeding, and watering systems. The contractor also supplies the labor
needed in growing the birds. The owner normally supplies the chicks,
feed, veterinary medicines and transportation. Contractors have
exclusive contracts with an owner and receive payment for the services
that they provide, with premiums and discounts tied to the efficiency
with which feed is converted to live-weight broilers, the minimization
of mortality, or the number of eggs produced. Specific contract terms
and the period covered can vary.
Embedded in the value of a bird at any point in time is the value
of inputs by both parties. Contractors' costs are more or less fixed
and are heavily committed early in the production cycle. Investments in
poultry housing cannot be shifted readily to other farming activities.
Currently, indemnity payments go directly to the owner of the birds
who, depending on the terms of the contractual arrangement, might or
might not compensate the contractor. It is important to formalize
provisions to share indemnity payments between poultry owners and
contractors, both of whom have productive assets imbedded in the value
of the bird. When USDA pays to compensate owners and contractors for
losses, that compensation should be distributed to parties who suffer
losses based on the terms of the contract.
APHIS' determination of the total amount of indemnity will remain
the same under the interim rule as at present, based on the appraised
value of the bird or eggs, the number of birds depopulated or eggs
destroyed, and the age of the birds when depopulated. However, to
determine the appropriate payment split between owner and contractor,
APHIS may have to examine contract specifics on a case-by-case basis.
This interim rule will not change the total amount of compensation paid
in a given situation, but will ensure timely distribution of that
compensation between the owner and contractor. This interim rule will
benefit contractors who otherwise may suffer uncompensated economic
losses from participating in an eradication program.
[[Page 6749]]
To date, the generic term ``materials'' within the existing
regulations in part 53 has been used to provide for indemnification for
eggs required to be destroyed pursuant to HPAI eradication efforts.
This rule will specify appropriate references to eggs, and a
description of the appraisal of the value of eggs destroyed due to HPAI
to the regulations. The rule will therefore simply clarify existing
practice for the indemnification of destroyed eggs and will not change
the total amount of any compensation paid in a given future situation.
The vast majority of contractors have some level of biosecurity in
place on their operations. This rule will require large owners and
contractors to provide a statement that a written biosecurity plan was
in place and was followed if HPAI is detected at their facilities.
There are approximately 18,900 poultry operations that will be subject
to this requirement. Many operations will need to review their existing
biosecurity plans, and some will need to newly develop plans. We
estimate that the development of a biosecurity plan could cost between
about $525 and $700, while the review of an existing plan could cost
about $70. If 5 percent of producers need to newly develop biosecurity
plans and 95 percent need to review existing biosecurity plans, the
total one-time cost for all producers could be between $1.7 million and
$1.9 million.
Most producers should be readily able to affirm that they were
following a biosecurity plan in the case of an HPAI incident. We
estimate that an owner or contractor will need at most about 0.25 to
0.50 hours to comply with this affirmation requirement, at a cost of
$8.73 to $17.45 per occurrence. The total cost of this affirmation
requirement will depend on the number of producers affected by a given
HPAI outbreak who submit paperwork to receive indemnity. If a given
outbreak were to affect 100 flocks, the total cost of this affirmation
requirement would be from about $900 to $1,800 and if a given outbreak
were to affect 500 flocks, the total cost would be from about $4,400 to
$8,800 when rounded up to the nearest hundred.\5\
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\5\ One hundred flocks * $8.73 = $873, 100 flocks * $17.45 =
$1,745, 500 flocks * $8.73 = $4,365 and 500 flocks * $17.45 =
$8,725.
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It should be noted that these total cost estimates are limited to
the cost of developing or reviewing biosecurity plans and providing a
statement attesting that a biosecurity plan was in place and followed.
Because this rule does not require the implementation of specific
biosecurity measures, the costs associated with implementing new
biosecurity measures are not included in these totals. We expect that
most producers already have or will voluntarily adopt new biosecurity
measures prior to the interim rule becoming effective.
APHIS is distributing biosecurity training materials that include
specific examples of approaches to developing and implementing
biosecurity protocols for various types of commercial poultry
operations. APHIS is phasing in enhanced biosecurity initially through
voluntary self-assessments. Results of self-assessments in the fall of
2015 show that a significant majority of poultry producers have in
place or are in the process of implementing a variety of recommended
biosecurity practices. Development, following public input, of Federal,
State or industry-led oversight and verification will follow.
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 2 CFR chapter IV.)
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
(OMB). When OMB notifies us of its decision, we will publish a document
in the Federal Register providing notice of the assigned OMB control
number.
Please send written comments on the information collection and
recordkeeping requirements included in this interim rule to the
following addresses: (1) Office of Information and Regulatory Affairs,
OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2)
Docket No. APHIS-2015-0061, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
1238. Please state that your comments refer to Docket No. APHIS-2015-
0061 and send your comments within 60 days of publication of this rule.
This interim rule establishes regulations to provide for the
equitable distribution of indemnity payment to owners and contractors
by the Department for the depopulation of poultry and destruction of
eggs known to be infected with HPAI and to require that, in order to
receive indemnity payments, owners and contractors, unless specifically
exempted, must submit a statement indicating that they had in place and
were following a biosecurity plan at the time of HPAI detection in
their facilities. In addition to submitting the biosecurity statement,
owners and contractors must sign a payment, appraisal and agreement
form and must certify as to whether any other parties hold mortgages on
the flock. This interim rule also clarifies that eggs are a commodity
eligible for indemnity.
We are soliciting comments from the public (as well as affected
agencies) concerning our information collection and recordkeeping
requirements. These comments will help us:
(1) Evaluate whether the information collection is necessary for
the proper performance of our agency's functions, including whether the
information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
information collection, including the validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average 1.626 hours per response.
Respondents: States; Poultry and egg owners and contractors.
Estimated annual number of respondents: 35,925.
Estimated annual number of responses per respondent: 1.9336.
Estimated annual number of responses: 69,456.
Estimated total annual burden on respondents: 112,950 hours. (Due
to averaging, the total annual burden hours may not equal the product
of the annual number of responses multiplied by the reporting burden
per response.)
[[Page 6750]]
Copies of this information collection can be obtained from Ms.
Kimberly Hardy, APHIS' Information Collection Coordinator, at (301)
851-2727.
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 interim rule, please contact Ms. Kimberly
Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.
List of Subjects in 9 CFR Part 53
Animal diseases, Indemnity payments, Livestock, Poultry and poultry
products.
Accordingly, we are amending 9 CFR part 53 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 part 53 continues to read as follows:
Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
0
2. In Sec. 53.2, paragraph (b) is revised to read as follows:
Sec. 53.2 Determination of existence of disease; agreements with
States.
* * * * *
(b) Upon agreement of the authorities of the State to enforce
quarantine restrictions and orders and directives properly issued in
the control and eradication of such a disease, the Administrator is
hereby authorized to agree, on the part of the Department, to cooperate
with the State in the control and eradication of the disease, and to
pay 50 percent (and in the case of Newcastle disease or highly
pathogenic avian influenza, up to 100 percent, and in the case of
infectious salmon anemia, up to 60 percent) of the expenses of
purchase, destruction and disposition of animals, eggs, and materials
required to be destroyed because of being contaminated by or exposed to
such disease: Provided, however, that if the animals or eggs were
exposed to such disease prior to or during interstate movement and the
owners or parties contracting with the owners to raise or care for the
animals or eggs are not eligible to receive indemnity from any State,
the Department may pay up to 100 percent of the purchase, destruction,
and disposition of animals, eggs, and materials required to be
destroyed; Provided further, that the cooperative program for the
purchase, destruction, and disposition of birds shall be limited to
birds which are identified in documentation pursuant to Agreements
between the Department and the particular State involved relating to
cooperative animal (including poultry) disease prevention, control, and
eradication, as constituting a threat to the poultry industry of the
United States; And provided further, that the Secretary may authorize
other arrangements for the payment of such expenses upon finding that
an extraordinary emergency exists.
0
3. Section Sec. 53.3 is amended as follows:
0
a. By revising the section heading.
0
b. In paragraph (a), by adding the words ``or eggs'' after the word
``Animals''.
0
c. By adding paragraph (e).
The addition and revision read as follows:
Sec. 53.3 Appraisal of animals, eggs, or materials.
* * * * *
(e) Indemnity for eggs required to be destroyed due to an outbreak
of highly pathogenic avian influenza will be based on the fair market
value of the eggs, as determined by an appraisal. Appraisals of eggs
shall be reported on forms furnished by APHIS. The amount of indemnity
paid, together with the amount for net salvage the owner or contractor
received, if any, shall not exceed the appraised fair market value of
the eggs.
0
4. Section 53.4 is amended as follows:
0
a. By revising the section heading.
0
b. By adding paragraph (b).
The addition and revision read as follows:
Sec. 53.4 Destruction of animals or eggs.
* * * * *
(b) Eggs infected with, exposed to, or contaminated by highly
pathogenic avian influenza shall be disposed of pursuant to the
regulations in this part under the supervision of an APHIS employee who
shall prepare and transmit to the Administrator a report identifying
all eggs disposed thereof.
* * * * *
0
5. Section 53.9 is amended as follows:
0
a. The section heading is revised.
0
b. By adding the word ``, eggs,'' after the word ``animals'' each time
it appears.
The revision reads as follows:
Sec. 53.9 Mortgage against animals, eggs, or materials.
* * * * *
0
6. Section 53.10 is amended as follows:
0
a. In paragraphs (c) and (d), by adding the word ``, eggs,'' after the
word ``animals'' each time it appears.
0
b. By adding paragraph (g).
The addition reads as follows:
Sec. 53.10 Claims not allowed.
* * * * *
(g) The Department will not allow claims arising out of the
destruction of animals or eggs destroyed due to an outbreak of highly
pathogenic avian influenza unless the owner of the animals or eggs and
any party that enters into a contract with the owners to grow or care
for the poultry or eggs, unless exempted under paragraph (g)(2) of this
section, provide to APHIS a statement that at the time of detection of
highly pathogenic avian influenza in the facility, the owner and
contractor (if applicable), had in place and was following a
biosecurity plan.
(1) The biosecurity plan should include the following:
(i) A biosecurity training program for premises/farm personnel;
(ii) Biosecurity protocols for personnel;
(iii) Procedures to control wild birds, rodents, and insects to
reduce the risk of introduction or spread of HPAI;
(iv) Measures taken to prevent HPAI introduction via vehicles and
equipment;
(v) Maintenance of a line of separation; and
(vi) A clean water source for the facility.
(2) Owners and contractors are exempted from the requirements of
paragraph (g)(1) of this section if the facilities where the animals or
eggs are raised or cared for falls under one of the following
categories:
(i) Premises meeting the criteria of the National Poultry
Improvement Plan regulations in Sec. Sec. 146.22(b) or 146.52(c) of
this chapter;
(ii) Premises on which fewer than 100,000 broilers are raised
annually; and
(iii) Premises on which fewer than 30,000 meat turkeys are raised
annually.
* * * * *
0
7. Section 53.11 is added to read as follows:
Sec. 53.11 Highly pathogenic avian influenza; conditions for payment.
(a) When poultry or eggs have been destroyed pursuant to this part,
the Administrator may pay claims to any party with whom the owner of
the
[[Page 6751]]
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 by the following method:
(1) Divide the value in dollars of the contract the owner entered
into with the contractor by the duration in days of the contract as it
was signed prior to the highly pathogenic avian influenza outbreak;
(2) Multiply this figure by the time in days between the date the
contractor began to provide services relating to the destroyed poultry
or eggs under the contract and the date the poultry or eggs were
destroyed due to highly pathogenic avian influenza.
(b) If a contractor receiving indemnity under this section has
received any payment under his or her contract from the owner of the
poultry or eggs at the time the poultry or eggs are destroyed, the
amount of indemnity for which the contractor is eligible will be
reduced by the amount of the payment the contractor has already
received.
(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 contractors and the total amount of
indemnity that may be paid for the poultry or eggs.
(d) In the event that determination of indemnity due a contractor
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.
Done in Washington, DC, this 3rd day of February 2016.
Gary Woodward,
Deputy Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2016-02530 Filed 2-8-16; 8:45 am]
BILLING CODE 3410-34-P