Proposed Rule2022-19260
Animal and Plant Health Inspection Service Indemnity Regulations
Primary source
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Published
September 7, 2022
Issuing agencies
Agriculture DepartmentAnimal and Plant Health Inspection Service
Abstract
We are soliciting public comment on a new approach to indemnity value determination and a new framework for the indemnity regulations. These parts address payment of indemnity for the destruction and disposition of animals the Animal and Plant Health Inspection Service (APHIS) classifies as infected with, suspect of, or exposed to diseases of concern, to eradicate and control foreign animal diseases, emerging diseases, and program diseases. The current regulations for valuing animals for the purpose of indemnification vary from species to species and, in some cases, disease to disease within a species. The new approach would harmonize how APHIS determines animal values and deals with costs associated with transportation, cleaning, disposal, and other points at which variations occur in how APHIS manages indemnity and compensation.
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<title>Federal Register, Volume 87 Issue 172 (Wednesday, September 7, 2022)</title>
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[Federal Register Volume 87, Number 172 (Wednesday, September 7, 2022)]
[Proposed Rules]
[Pages 54633-54636]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19260]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 87, No. 172 / Wednesday, September 7, 2022 /
Proposed Rules
[[Page 54633]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 50, 51, 52, 52, 54, 55, and 56
[Docket No. APHIS-2021-0010]
RIN 0579-AE65
Animal and Plant Health Inspection Service Indemnity Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Advance notice of proposed rulemaking and request for comments.
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SUMMARY: We are soliciting public comment on a new approach to
indemnity value determination and a new framework for the indemnity
regulations. These parts address payment of indemnity for the
destruction and disposition of animals the Animal and Plant Health
Inspection Service (APHIS) classifies as infected with, suspect of, or
exposed to diseases of concern, to eradicate and control foreign animal
diseases, emerging diseases, and program diseases. The current
regulations for valuing animals for the purpose of indemnification vary
from species to species and, in some cases, disease to disease within a
species. The new approach would harmonize how APHIS determines animal
values and deals with costs associated with transportation, cleaning,
disposal, and other points at which variations occur in how APHIS
manages indemnity and compensation.
DATES: We will consider all comments that we receive on or before
November 7, 2022.
ADDRESSES: You may submit comments by either of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">www.regulations.gov</a>.
Enter APHIS-2021-0010 in the Search field. Select the Documents tab,
then select the Comment button in the list of documents.
<bullet> Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2021-0010, 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 <a href="http://Regulations.gov">Regulations.gov</a> or in our reading room, which is located
in Room 1620 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. Michael Carter, Commodity Policy
Advisor, Strategy and Policy, Veterinary Services, 4700 River Road,
Riverdale MD 20737; Phone: (301) 851-3510.
SUPPLEMENTARY INFORMATION:
Background
The Animal Health Protection Act (7 U.S.C. 8301-8317) gives
authority to the Secretary of Agriculture to hold, seize, quarantine,
treat, destroy, dispose of, or take other remedial action as needed to
prevent the introduction and spread of livestock pests and diseases
within the United States. The Act also directs the Secretary to
compensate the owner of any animal, article, facility, or means of
conveyance that the Secretary requires to be destroyed. This
compensation includes the payment of indemnity, which is monetary
payment made to a livestock owner for animals and animal products taken
or destroyed to control or eradicate a disease. These authorities have
been delegated to the Animal and Plant Health Inspection Service
(APHIS).
The current regulations for valuing animals for the purpose of
compensation, known as the indemnity regulations, vary from species to
species and, in some cases, disease to disease within a species. The
methods disease programs use range from specifying outdated flat rates
to requiring in-person appraisal, with in-person appraisal being the
most common method specified in the regulations.
In-person appraisal presents some significant difficulties. It
works best for isolated incidents of slow-moving diseases of livestock.
However, when APHIS encounters a widespread and fast-moving outbreak,
such as occurred in 2014-2015 and again in 2022 with highly pathogenic
avian influenza (HPAI), the rapid transmission of the disease can
overwhelm the ability to provide timely and complete appraisal of fair
market value using in-person appraisers. Additionally, third-party
appraisal requires significant safeguards to ensure transparent and
equitable appraisal, such as APHIS training of appraisers and robust
review of records submitted by appraisers, and APHIS' resources to
provide such safeguards have become increasingly limited over the
years.
We are soliciting comments on an approach, discussed below, to
restructure the indemnity regulations in 9 CFR parts 50 through 56
(referred to below as the regulations). The regulations currently
provide for the payment of indemnity to owners of certain animals
destroyed because APHIS classifies them as infected by, suspect of, or
exposed to diseases of concern, for the purpose of eradicating and
controlling foreign animal diseases, emerging diseases, and program
diseases.
Part 50 provides conditions for the payment of indemnity for
animals destroyed because of tuberculosis; part 51 for animals
destroyed because of brucellosis; and part 52 for swine destroyed
because of pseudorabies. Part 53 provides conditions for the payment of
indemnity for animals destroyed because of foreign animal diseases,
such as foot-and-mouth disease, contagious pleuropneumonia, Newcastle
disease, HPAI, infectious salmon anemia, spring viremia of carp, as
well as any other communicable disease of livestock or poultry that the
Secretary decides constitutes an emergency and threatens the livestock
or poultry of the United States. Part 54 contains our regulations
governing indemnification for scrapie in sheep and goats, while part 55
contains our regulations governing indemnification for chronic wasting
disease in captive cervids. Finally, part 56 contains our regulations
governing indemnification for poultry destroyed because of H5/H7 low
pathogenic avian influenza.
Within the regulations, many of the processes used for requesting
and obtaining indemnity are similar from part to part, despite the
disease agent and species in question differing among
[[Page 54634]]
the parts. For example, the parts generally require requests for
indemnity to be presented on forms furnished by APHIS,\1\ and they
require the claimant to report any salvage derived from the sale of the
animals, any indemnity already paid for the animals by parties other
than APHIS, and any existing mortgage against the animals.
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\1\ The paperwork and recordkeeping activities described in this
document are included under the following OMB control numbers: 0579-
0007, 0579-0047, 0579-0065, 0579-0101, 0579-0146, 0579-0189, 0579-
0192, and 0579-0195.
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However, while the processes for qualifying for and obtaining
indemnity are often similar, the processes within the regulations for
valuing animals for the purpose of indemnification vary from species to
species and, in some cases, disease to disease within a species. For
example, whereas the regulations governing indemnification for cattle
that are destroyed because of exposure to brucellosis allow for either
a flat rate indemnification or appraisal of fair market value, the
regulations governing indemnification of cattle destroyed because of
exposure to tuberculosis require appraisal of fair market value.
Additionally, while the regulations governing indemnification of cattle
destroyed because of exposure to tuberculosis specify that the
appraiser of fair market value must be selected by APHIS, the
regulations governing indemnification of cattle destroyed because of
exposure to brucellosis contain no such specification.
At this time, we are considering two structural changes to the
indemnity regulations. First, we are considering standardizing use of
an annual indemnity value table for livestock species. APHIS is also
contemplating a framework to consolidate all commodity indemnity
regulations under a single unified section in part 50. Parts 51 through
56 would be removed, and the numbers reserved.
Indemnity Value Table
APHIS is considering standardizing use of an annual indemnity value
table for livestock \2\ species, with allowances for appraisal only
when an indemnity value cannot be calculated using the tables, or when
a producer elects to appeal the indemnity value based on extraordinary
circumstances surrounding the livestock or poultry at issue. The table,
found at <a href="https://www.aphis.usda.gov/animal_health/downloads/usda-commercial-values-2022.pdf">https://www.aphis.usda.gov/animal_health/downloads/usda-commercial-values-2022.pdf</a>, includes explanation of methods of
calculation and sources. APHIS currently maintains such a table.
However, because its use is not specified within the regulations, its
use is not standardized.
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\2\ Please note that the Animal Health Protection Act, pursuant
to which authority this document is being issued, defines livestock
as: ``All farm-raised animals.'' This includes bees, farmed
aquaculture, poultry, and animals maintained in captivity on a farm.
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In standardized use of an indemnity value table, the regulations we
are considering would state that APHIS would determine indemnification
values annually and publish the values online. Notification of the
revised values would be provided through a notice published in the
Federal Register. With this standardization, APHIS would also provide
indemnity values by animal classes similar to the Farm Service Agency's
(FSA) Livestock Indemnity Program.\3\ Categories will include animal
classes such as non-adult (400-799 pounds) beef steers, sire rams of
breeding age, and ducks 12 months of age or older. APHIS will work with
other U.S. Department of Agriculture (USDA) agencies to develop common
methods for determining animal classes and values for the standardized
table.
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\3\ The FSA Livestock Indemnity Program regulations are found at
7 CFR 1416.301 through 1416.306. Further information about the
program is found at: <a href="https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/FactSheets/livestock_indemnity_program_lip-fact_sheet.pdf">https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/FactSheets/livestock_indemnity_program_lip-fact_sheet.pdf</a>.
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A standardized approach would eliminate the different indemnity
values used in different disease programs for the same species, such as
in the example above regarding the discrepancy between indemnification
for brucellosis in cattle and indemnification for tuberculosis in
cattle. It would also resolve several known operational challenges with
indemnification based on fair market appraisal by an appraiser. The
first operational challenge is that appraisal of fair market value by
an appraiser works best for isolated incidents of significant, but
slow-moving, diseases of livestock and poultry. When a widespread and
quickly moving outbreak occurs, such as the 2014-2015 outbreak of HPAI
in which 7.4 million turkeys and 43 million egg-layers/pullet chickens
were determined to be affected with HPAI, the rapid transmission of the
disease can overwhelm the ability to provide timely and complete
appraisal of fair market value using in-person appraisers. The second
operational challenge is that a regulatory framework that is based
primarily on third-party appraisal requires significant safeguards to
ensure consistent and transparent appraisal, such as APHIS training of
the appraisers and establishing mechanisms for thorough review of the
appraisal records submitted to APHIS. APHIS' resources to provide such
training and review of such records have become extremely limited.
APHIS seeks public comment on this approach, with a specific focus
on how this approach may affect members of the public, as well as how
any alternative suggestions may improve the indemnity regulations.
Consolidation of Indemnity Regulations
APHIS is also contemplating a framework to consolidate all
commodity indemnity regulations under a single unified section in part
50. Parts 51 through 56 would be removed, and the numbers reserved.
As noted above, many of the sections within parts 51 through 56
contain substantially similar regulatory provisions regarding the
process for requesting and obtaining indemnity, and they could be
consolidated into a single part with minor changes to verbiage and no
changes to operational practices. The consolidated part would, however,
harmonize how APHIS addresses value determination, compensation for
cleaning and disposal, and other instances in which variations occur
within the current parts.
While APHIS believes a single harmonized part would effectively
address most indemnification cases, we are seeking input on whether
there are any species, commodity classes or intended uses within a
species, or other considerations that would merit their own part. We
are also seeking input on any sections where the disease management
approach could be significantly altered by such consolidation of the
indemnification process.
Below, we discuss section by section our current thinking regarding
a consolidated part 50.
Definitions
This section would define livestock classes, diseases, and disease
status important for the interpretation of the regulations. We
anticipate that the definitions would generally be drawn from and
consistent with the definitions currently in the regulations. We invite
comment on whether any of the current definitions should be revised. We
also invite comment on whether any definitions should be added to those
currently in the regulations.
Applicability
This section would list the species and diseases that fall under
these regulations. Diseases would be reorganized and split into two
different categories for which APHIS may provide indemnity: (1) Foreign
animal
[[Page 54635]]
diseases and emerging diseases; and (2) domestic program diseases.
For the former category, APHIS would maintain a list online of the
foreign animal diseases and emerging diseases for which we may pay
indemnity. APHIS would publish changes to the list in a notice in the
Federal Register and state the basis for the change. As a baseline,
this list would contain the diseases currently listed in part 53 of the
regulations (Foot-and-mouth disease, contagious pleuropneumonia,
Newcastle disease, HPAI, infectious salmon anemia, and spring viremia
of carp), as well as classical bovine spongiform encephalopathy. The
regulations would continue to recognize the potential for other
communicable diseases of livestock or poultry that the Secretary
decides constitute an emergency and threaten the livestock or poultry
of the United States.
In addition to the foreign animal diseases and emerging diseases
listed above, APHIS would group together the following domestic
diseases:
<bullet> Cattle and Bison: Bovine tuberculosis, bovine brucellosis.
<bullet> Captive Cervids: Bovine tuberculosis, bovine brucellosis,
and chronic wasting disease.
<bullet> Goats: Scrapie, bovine tuberculosis, and brucellosis.
<bullet> Sheep: Scrapie, bovine tuberculosis, brucellosis.
<bullet> Swine: Pseudorabies, brucellosis, and bovine tuberculosis
when associated with bovine tuberculosis cattle herds.
<bullet> Poultry: H5/L7 low pathogenic avian influenza.
Testing and Records of Tests
This section would discuss requirements for test records that
document eligibility for indemnity for the animals. Parts 50 and 51
currently contain such requirements, and they are very similar to each
other. At this time, we are not considering substantial changes from
the language already in the regulations. However, we invite public
comment on any challenges that may have arisen with the current
requirements and how they might be addressed.
Payments to Owners
This section would provide for the possibility of compensation to
owners for costs other than the destruction of the animals, and, if so,
what costs APHIS could compensate. It would also set forth requirements
for forms required by APHIS regarding the compensation for animals, the
cost of disposition of covered animals, the cost of material destroyed,
and the expenses associated with destruction. This section would
consolidate existing language from the current regulations; we are not
considering substantial changes to the current practice. However, we
again invite public comment on any challenges that may have arisen with
the current requirements and how they might be addressed.
Claims Not Allowed
This section would provide additional conditions for certain
disease agents that affect whether indemnity can be claimed. Again, we
are not currently considering substantial changes from the requirements
currently in the regulations but invite public comment on challenges
associated with the current requirements and how they may be addressed.
Identification
This section would describe the identification requirements of the
animals that qualify for indemnification and the timeline for such
identifications. For those disease programs that do not have
identification requirements, we would refer to the requirements in 9
CFR part 86 (the Animal Disease Traceability regulations) for official
identification. We are also considering removing reactor and suspect
branding and reactor tags as forms of reactor and suspect
identification for animals that qualify for indemnification for
brucellosis because APHIS no longer uses such identification within the
domestic brucellosis eradication program.
Determination of Indemnity
APHIS is considering substantial changes to this section. With the
consolidation of parts 50 to 56, APHIS is proposing to standardize how
animals are valued for all commodities regardless of disease program.
As noted above, APHIS is considering generally harmonizing its approach
to animal valuation with that of FSA. The tables produced by APHIS and
FSA would use the same calculations and data sets for the value
determination. APHIS would update the indemnity values for APHIS
program use annually and post them to the APHIS website. These values
would be determined by the meat, egg production, and dairy or breeding
value of the animals using publicly verifiable data sources. Animals
would be valued in categories by species and type. APHIS has created a
2022 indemnity values document for commercial production animal
classes, and it can be viewed on the APHIS website at <a href="https://www.aphis.usda.gov/animal_health/downloads/usda-commercial-values-2022.pdf">https://www.aphis.usda.gov/animal_health/downloads/usda-commercial-values-2022.pdf</a>. This document describes in detail how the values for each
class of animal would be determined.
When APHIS needs to indemnify a species or class of animal that is
not listed in the tables (e.g., if an emerging disease were to impact a
species of livestock for which indemnity is currently not provided, or
if indemnity were sought for organic animals or animals subject to
value-added production practices), APHIS would determine whether there
is sufficient representative data from industry sources and
professional appraisal groups to determine a national value for the
species or class of animal. If there is such a national value, APHIS
would amend the table to add the new category and issue a notice in the
Federal Register announcing the new values. If APHIS cannot identify a
national value based on available data, APHIS would require appraisal
by an APHIS-approved appraiser. This could be an appraiser APHIS
selects, or alternatively, an appraiser the owner of the animals
selects and pays, and whom APHIS determines to meet certain
professional standards and not to be in a material conflict of interest
in appraising the animals.
An owner could appeal the indemnity value set forth in a table or
the appraised value provided by an appraiser selected by APHIS. To do
so, the owner would have to secure an alternate appraisal by an
appraiser he or she selects and pays for at his or her own expense.
APHIS would require that the appraiser meet certain professional
standards and not to be in a material conflict of interest regarding
appraising the animals. During an incident requiring remediation, costs
incurred are the producer's responsibility up to the point the
necessary indemnity paperwork is signed.
In addition to general comments about the suitability of this
approach, APHIS requests comment on whether there are any species or
classes not covered either by FSA's tables or APHIS' own tables for
which APHIS should develop a value for indemnification and any
recommended data sources available for determining national values for
these classes.
Cap on Values Paid by APHIS
Currently, APHIS has a cap on several animal commodities, such as
$3000 for individual cattle under the Tuberculosis Eradication Program.
However, APHIS is considering removing these since the annual table
value would be the amount APHIS would indemnify under most
circumstances. We invite comment on
[[Page 54636]]
whether, if APHIS cannot calculate a table value for the animals, caps
should be in place and at what values APHIS should set those caps.
Mortgages
As noted above, the regulations generally require owners to
indicate whether the animals for which indemnification is being
requested are subject to any mortgage. We are not currently considering
substantial changes from the requirements currently in the regulations
but invite public comment on challenges associated with the current
requirements and how they may be addressed.
Joint Ownership/Contract Raisers
The regulations in part 56 provide for payment of indemnity or
compensation to both poultry owners and contractors who raise poultry
for others. We are considering whether to expand this to other
commodities as well since more commodity groups are using contract
raisers. We are seeking information about how other industries use
contractors and how indemnification and compensation might work in
those industries.
Salvage Values
There are times that the meat from indemnified animals can be
salvaged during disease eradication efforts. This is part of industry's
contribution to the indemnification process. This section would
describe how the amount APHIS pays a producer is modified when value
from the animals can be salvaged. This section is not expected to
change significantly from the current regulations, but we invite public
comment on challenges associated with the current regulations and how
they may be addressed.
Destruction and Disposal
Language in this section would largely remain the same with some
harmonization between the disease programs. For the most part, language
would be similar to that which is used for herd depopulations. APHIS is
also considering harmonizing what material qualifies for destruction
under this section. For example, if APHIS determines that material such
as feed from premises affected by a foreign animal disease needs to be
destroyed, APHIS would, in most cases, indemnify it. For program
diseases, APHIS will need to make this determination for a regulated
disease on the basis of the disease itself and the likelihood of
further transmission if the feed or other material is later used.
Cleaning and Disinfection of Premises, Conveyances, and Materials
APHIS is considering harmonizing the language across all
commodities as to what cleaning costs are covered when APHIS requires
cleaning and disinfection prior to repopulating a facility. APHIS
currently will cover cleaning and disinfection costs after removing
animals for foreign animal diseases, but not for program diseases.
Harmonizing across all diseases will likely increase APHIS' costs and
potentially lower the available funds for indemnifying animals. Again,
we are inviting public comment on challenges associated with the
current requirements and whether greater harmonization is needed.
Pre-Exposure Biosecurity Requirements for Herds/Flocks
Currently, in order for a producer or owner to receive indemnity
for poultry destroyed because of avian influenza, the producer must
meet pre-exposure biosecurity requirements. There are similar
requirements for farmed aquaculture with respect to infectious salmon
anemia. APHIS is considering expanding this approach to other commodity
groups. APHIS is seeking input as to whether similar approaches can be
put in place for other animal commodities and what would constitute
basic biosecurity protocols as minimum standards. APHIS is also
interested in the issues and impact this would have on producers for
each of the commodities if these requirements are included as a
condition of indemnification.
Post-Exposure Biosecurity Requirements
Post-exposure biosecurity requirements are already built into the
various disease programs. In most cases, these are in effect as an
affected herd or flock plan that the producer must adhere to as a
condition for future indemnification. APHIS would like to harmonize the
requirements within animal commodity groups to the extent possible, and
APHIS seeks public comment on ways by which we might do this.
Environmental Impacts
APHIS seeks public comment on how the above framework may implicate
the ``human environment,'' as this phrase is understood within the
context of the National Environmental Policy Act (NEPA). Comments will
help inform APHIS as to the applicability of NEPA to modifications to
the indemnity regulations.
Economic Considerations
APHIS seeks public comment on economic cost considerations
associated with the above framework. Particularly, we are interested in
receiving comment as to whether there are any instances in which the
proposed approach to calculating indemnity could result in substantial
economic impacts for producers relative to the current regulations, as
well as instances in which the consolidation and harmonization
identified above could result in costs or benefits for affected
parties.
Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
Done in Washington, DC, this 31st day of August 2022.
Jennifer Moffitt,
Undersecretary, United States Department of Agriculture.
[FR Doc. 2022-19260 Filed 9-6-22; 8:45 am]
BILLING CODE 3410-34-P
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