Title of Regulation: 2VAC5-200. Rules and Regulations Pertaining to the Disposal of Entire Flocks of Dead Poultry (amending 2VAC5-200-10, 2VAC5-200-20, 2VAC5-200-30, 2VAC5-200-50, 2VAC5-200-60).

Statutory Authority: § 3.2-6002 of the Code of Virginia.

Public Hearing Information:

December 4, 2008 - 10 a.m. - Oliver Hill Building, Virginia Department of Agriculture and Consumer Services, 102 Governor Street, Room 220, Richmond, VA

Public Comments: Public comments may be submitted until December 26, 2008.

Agency Contact: Colleen Calderwood, DVM, Program Manager, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-2483, FAX (804) 371-2380, TTY (800) 828-1120, or email colleen.calderwood@vdacs.virginia.gov.

Basis: The Board of Agriculture and Consumer Services is authorized to adopt regulations under § 3.2-6002 of the Code of Virginia. This section encourages the board to conform its regulations involving the prevention and eradication of contagious or infectious diseases to livestock and poultry with federal regulations establishing regional or national plans of control and eradication. This regulation is in keeping with the state’s duty to control and eradicate infectious or contagious disease as part of that state/federal cooperative effort. This regulation as it now exists and as it will be amended leaves extensive discretion with the State Veterinarian as to which method will be used to dispose of large numbers of poultry carcasses when an outbreak of an infectious or contagious disease, such as Avian Influenza or Exotic Newcastle Disease, occurs. Disposal of whole flocks will be accomplished by the use of quarantine orders issued by the State Veterinarian under § 3.2-6003 of the Code of Virginia. Although this latter authority exists, the proposed regulation further identifies the acceptable methods that can be used for disposal.

Purpose: This regulatory action is essential to protect the health of Virginia’s citizens by preventing the spread of infectious or contagious diseases. Some of the diseases of concern (i.e., H5, H7 high pathogenicity avian influenza) are zoonotic diseases (i.e., can be spread from poultry to humans). Delayed identification of an effective, safe, and environmentally sound means of disposing of the poultry carcasses would cause a delay in the depopulation of infected flocks, thereby potentially causing an increase in the number of flocks becoming infected. In case of a high pathogenicity avian influenza outbreak, the risk of humans becoming infected with the disease would increase. This on-farm composting can help protect the public by reducing the possible exposure to the disease of concern that could occur if carcasses are moved from the premises.

Substance: The substantive provisions of the proposed regulation include the following:

A definition of "composting" is added to define that specific biological process.

The definition of "dead poultry" is amended to update the definition and to incorporate poultry destroyed as a result of natural disasters.

The definition of "department" is removed as being unnecessary.

The definition of "disposal" is amended to include composting or other methods approved by the State Veterinarian to allow for greater flexibility.

The definition of "disposal pit" is amended to update and reference appropriate Department of Environmental Quality regulations.

The definition of "flock" is amended to provide discretion for determining a separate flock by the State Veterinarian instead of the department.

The definition of "incinerator" is amended to mirror a similar definition contained in the Code of Virginia.

The definition of "infectious and contagious disease" is removed as being unnecessary.

The definition of "landfill" is amended to mirror a similar definition contained in the Code of Virginia.

The definition of "person" is amended to remove the terminology "for profit." Additionally, other "for profit" references are removed throughout the proposed regulation to show that the regulation applies to whole flock disposal, whether for profit or not for profit.

2VAC5-200-20 is amended to better emphasize that the proposed regulation only applies to situations where the entire flock must be disposed of.

2VAC5-200-30 is amended to incorporate composting as an acceptable method of disposal.

2VAC5-200-50 is amended to eliminate the requirement of filing a disposal plan with the State Veterinarian, to require that the person must have a plan in their possession that can be made readily available to the State Veterinarian or his representative, and to identify that persons owning flocks of less than 500 poultry are not required to have a disposal plan, but will work in consultation with the State Veterinarian to determine a proper method of disposal.

The forms section is removed as the forms identified in the existing regulation are obsolete.

Issues: Poultry diseases of regulatory concern like Avian Influenza and Exotic Newcastle Disease can have serious financial and economical impacts on the affected individuals and communities. Poultry growers and their employees, poultry farm service providers, litter brokers, processing facility employees, and transportation providers can be adversely impacted during a contagious disease outbreak. During the 2002-2003 low pathogenicity avian influenza outbreak in the Shenandoah Valley of Virginia, delayed identification of an effective, safe, and environmentally sound means of disposing of the poultry carcasses caused an interruption in the depopulation of infected flocks.

Adding composting as an acceptable method of whole poultry flock carcass disposal provides poultry growers, and the industry as a whole, an additional economical and environmentally sound method of carcass disposal, in addition to other methods already permitted by the regulation.

The primary advantages to the public include benefits to Virginia families whose income would be severely and adversely affected if there were an outbreak of avian influenza. Allowing composting provides an economical and environmentally sound option to poultry producers to quickly and effectively dispose of large numbers of poultry carcasses, minimizing the negative economic impact that will be experienced by these producers. Also, suppliers and family businesses dependent on the poultry industry would also have diminished income during the control and eradication period following the outbreak of the disease; consequently, if poultry carcasses can be disposed of quickly and effectively, the length of time that these other businesses will be affected can be shortened minimizing the negative financial impact on these businesses.

Primary advantages to the agency and the Commonwealth are that this proposed regulation would facilitate the state’s duty to control and eradicate infectious or contagious disease in poultry by allowing as many viable options of carcass disposal as possible.

Composting is an environmentally sound method of carcass disposal that allows for disposing of large biomasses of dead poultry on the same premises where the birds were grown. This on-farm composting can protect other poultry and possibly the public by reducing the possible exposure to the disease of concern (i.e. H5, H7 avian influenza) that could occur if carcasses are moved from the premises. This is one of the methods of carcass disposal preferred by the Virginia Poultry Disease Task Force that is composed of representatives from the commercial poultry industry, the Virginia Department of Agriculture and Consumer Services, the Virginia Department of Environmental Quality, and the United States Department of Agriculture.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Regulation. The Virginia Department of Agriculture and Consumer Services (VDACS) proposed to amend the existing Rules and Regulations Pertaining to the Disposal of Entire Flocks of Dead Poultry by (1) adding "composting" as a method of whole poultry flock carcass disposal; (2) removing the terminology "for profit" from the definition of "person" as well as other locations of the regulations; (3) amending the definition of "dead poultry" to incorporate poultry destroyed as a result of natural disasters; and (4) no longer requiring that disposal plans be filed with the State Veterinarian.

Results of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The current regulation permits poultry infected with infectious or contagious disease to be destroyed by incineration (on or off the farm premises where the birds were raised), rendering, burying in a landfill, or burying on premises in a disposal pit. The proposed regulation will add "composting" as an approved method of disposal. Composting of poultry carcasses is a decomposition process that involves mixing carcasses, a carbon source, and water that, following the decomposition process, will create a homogenous organic material suitable for use as a soil conditioner, fertilizer or material for land application.

Composting is an environmentally sound method of carcass disposal which allows for disposing of large biomasses of dead poultry on the same premises where the birds were grown. This on-farm composting can protect other poultry and possibly the public by reducing the possible exposure to the disease of concern that could occur if carcasses are moved from the premises. It is one of the methods of carcass disposal preferred by the Virginia Poultry Disease Task Force.¹ The use of composting for disposal of whole poultry flock mortality will expedite responses to disease events and help control the consequences of a disease spreading in a locality. Rapid response relative to disposal of whole flocks of poultry will likely minimize any negative effect that would be experienced by poultry producers. Also, if poultry carcasses can be disposed of quickly and effectively, the length of time that suppliers and family businesses dependent on the poultry industry will be affected can be shortened, minimizing the negative financial impact on these businesses.

VDACS also proposes to amend the definition of "dead poultry" to incorporate poultry destroyed as a result of natural disasters and makes it clear that on farm composting is a disposal option for whole flock mortality that results from nondisease causes. According to VDACS, currently the options are similar for disposal of whole flock mortality that results from either infectious disease or natural disasters, with the actual disposal method chosen based on a combination of considerations including public safety, worker safety, environmental considerations, and efficiency. Therefore this proposed change will likely not have any significant effect.

The proposed regulation will amend the requirement pertaining to disposal plans for an entire flock of dead poultry. Disposal plans will be no longer required to be filed with the State Veterinarian before any person could engage in the raising or keeping of poultry² or enter into a contract involving the raising or keeping of poultry with any other person. Instead, the proposed regulation requires that a disposal plan be developed and be made available to the State Veterinarian or his representative upon request. This proposed change will likely save the processing time for the regulated operations and allow them to conduct business in a more efficient way. Neither the current regulation nor the proposed regulation requires disposal plans for persons owning flocks of less than 500 poultry. The proposed regulation adds a statement that the State Veterinarian, in consultation with the owner, will determine a method of disposal during a mortality event of a flock of less than 500 poultry. The added language will provide clarifications to the existing regulation without causing any significant costs to the small poultry growers.

VDACS also proposes to remove the words "for profit" from the definition of "person" and throughout the regulation to reflect that the regulation applies to both for-profit operations and not-for-profit entities. VDACS states that this proposed change will not cause any significant impact except for the requirement of plan development. The proposed regulation requires that all poultry growers with a flock of more than 500 poultry shall have a disposal plan developed and make it available to the State Veterinarian or his representative on request. Poultry owners with a flock of less than 500 poultry are not required to develop such a plan. According to VDACS, the Virginia Department of Environmental Quality and the Virginia Cooperative Extension Service (VCE) have released a publication entitled "Guidelines for In-House Composting"; the Virginia Poultry Disease Task Force has developed a document entitled "Avian Influenza, Surveillance and Rapid Response Plans." These documents are available to the public and may be used to develop a whole flock mortality disposal plan. VDACS will work with VCE Poultry Specialists to develop generic disposal plans that local extension agents can use to help producers develop a whole flock mortality plan. VDACS believes that this proposed change will cause only a minimal investment in time for the relevant poultry growers.

Businesses and Entities Affected. VDACS reports that there are approximately 7 large poultry companies and 1200 growers doing businesses in Virginia, all of which have more than 500 poultry on their premises. There are a large number of owners with less than 500 poultry, but the number is unknown.

Localities Particularly Affected. The proposed amendment will affect all localities with poultry growers. Particularly, localities that have the greatest densities of poultry growers would be impacted to a much greater extent than other localities. These localities would include counties located in the Shenandoah Valley, South Central Virginia, Southeast Virginia, and the Eastern Shore.

Projected Impact on Employment. Adding composting as a method of disposal of whole poultry flock mortality will likely expedite responses to disease events and reduce any negative effect for poultry producers, suppliers and other businesses dependent on the poultry industry. This will likely reduce the drop in employment in the event of diseases or natural disasters.

Effects on the Use and Value of Private Property. Allowing the use of composting for disposal of whole poultry flock mortality will likely reduce the spread of high mortality infectious disease and benefit other poultry growers. Adding composting as an option for the disposal of whole flock mortality will also likely expedite responses to disease events and will likely minimize any negative effect that would be experienced by poultry growers, suppliers and other businesses dependent on the poultry industry. Therefore, the proposed change will likely have a positive impact on the value of these properties.

Small Businesses: Costs and Other Effects. Allowing the use of composting for disposal of whole flock mortality will likely reduce the spread of high mortality infectious disease and expedite responses to disease events, which will likely minimize any negative effect that would be experienced by small poultry producers, suppliers and other small businesses dependent on the poultry industry. Small for-profit growers with more than 500 poultry will benefit from the proposed change relating to the disposal plan. Small not-for-profit growers with a flock of more than 500 poultry will be required to have a disposal plan developed. VDACS believes that this requirement will cause only a minimal investment in time for the poultry growers, because documents are available to the public from the Virginia Department of Environmental Quality, Virginia Cooperative Extension Service, and the Virginia Poultry Disease Task Force, at no charge, that will facilitate the development of whole flock mortality disposal plans. VDACS estimates that approximately 25% of the 1200 poultry growers are small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed regulation will likely benefit all poultry owners by reducing the possible exposure to the high mortality, infectious diseases. Small for-profit growers with more than 500 poultry will benefit from the proposed change relating to the disposal plan. Small not-for-profit growers that own flocks of more than 500 poultry may incur a minimal cost in developing a disposal plan from a model. There is no alternative method that could achieve the same purpose with a lower adverse effect.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed regulation amends the acceptable methods of carcass disposal to permit composting or other methods approved by the State Veterinarian; adds language on provisions governing composting; and amends the requirement to file disposal plans. The substantive changes proposed by this action include adding "composting" as a method of disposing of poultry destroyed to prevent the spread of an infectious or contagious disease; amending the definitions of "incinerator" and "landfill" to mirror definitions in the Code of Virginia; removing the definition of "infectious and contagious disease"; amending the definition of "person" to remove the terminology "for profit" (as well as removing this terminology from other locations within the proposed regulation) to reflect that the regulation applies not only to for-profit operations, but also to those that are not-for-profit.

2VAC5-200-10. Definitions.

The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise:

"Composting" means the natural process in which beneficial microbes reduce dead poultry into a biologically safe byproduct.

"Dead poultry" means poultry, exclusive of those intentionally slaughtered for food, which that die or are destroyed as a result of a contagious and infectious disease upon any premises in the state through natural contagion on any premises in this state and poultry destroyed as the result of a natural or manmade disaster.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Disposal" means the complete to put dead poultry into a landfill or disposal pit; the complete destruction of dead poultry in an incinerator or their proper disposition in a disposal pit, in a landfill, or by rendering or composting; or the management of dead poultry by other methods approved by the State Veterinarian.

"Disposal pit" means an opening dug in the ground that meets the Initial Site Screening Criteria for Burial of Dead Poultry, the terms of which are hereby incorporated by reference and criteria as specified in VR 672-20-10 9VAC20-80, of the Virginia Department of Waste Management Environmental Quality, Solid Waste Management Regulations.

"Entire flock" means all of the poultry within one group of poultry that has been designated as a flock for a period of at least 21 days.

"Flock" means all of the poultry on one premises, except that, at the discretion of the department State Veterinarian, any group of poultry which is segregated from other poultry and has been so segregated for a period of at least 21 days may be considered as a separate flock.

"Incinerator" means a firebox constructed of masonry or metal in which dead poultry is burned by the use of fuel device designed for treatment of waste by combustion.

"Infectious and contagious disease" means avian influenza and exotic newcastle disease.

"Landfill" means an engineered land burial facility for the disposal of solid waste which is so located, designed, constructed, and operated to contain and isolate the solid waste so that it does not pose a substantial present or potential hazard to human health or the environment area permitted by the Department of Environmental Quality allowing the disposal of dead poultry.

"Off-farm disposal site" means any site for the disposal of dead poultry other than the farm on which the dead poultry died.

"Person" means any person, firm, partnership, corporation, or institution which engages in the raising or keeping of poultry for profit in this state.

"Poultry" means all chickens, ducks, turkeys or other domestic fowls being raised or kept on any premises in the state for profit.

"Premises" means the entire tract of land, including but not limited to the buildings thereon, owned, leased or used by any person for the raising or keeping of poultry for profit.

"Raising or keeping of poultry for profit" means the raising or keeping of 500 or more poultry at one time for the purpose of sale of such poultry or the eggs produced therefrom.

"Rendering" means treating dead poultry according to the process described in 9 CFR § 381.95(a) 82.1.

2VAC5-200-20. Applicability.

This chapter shall govern the disposal of dead birds poultry by persons who raise or keep poultry for profit or who have entered into a contract for the raising or keeping of poultry for profit, but only when the entire flock is to be depopulated or when the entire flock dies. In all other instances § 3.1-742.1 et seq. involving for profit operations, Article 2 (§ 3.2-6024 et seq.) of Chapter 60 of Title 3.2 of the Code of Virginia, Disposal of Dead Poultry, shall govern.

2VAC5-200-30. Disposal pits, incinerators, landfilling landfills, or rendering, or composting required of persons raising or keeping poultry for profit.

A. It shall be unlawful for any person to engage in the raising or keeping of poultry for profit on any premises within the Commonwealth of Virginia, or to enter into a contract involving the raising or keeping of poultry for profit with any other person, unless the premises upon which such poultry is to be raised or kept is provided with or unless the person maintaining the premises whereon the poultry is raised or kept has access to:

1. A disposal pit;

2. An incinerator;

3. A renderer through a bona fide contract for rendering;

4. A landfill, through a bona fide contract for the disposal of dead poultry therein.

5. Composting either on site, in the poultry house, or at another site approved by the State Veterinarian; or

6. Any other method approved by the State Veterinarian.

B. Provisions governing disposal pits.

1. If possible, an area away from public view should be selected.

2. No person engaged in the raising or keeping of poultry for profit and no person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall construct or use any pit for the disposal of poultry unless it conforms to the definition of a disposal pit contained in this chapter.

3. Any person engaged in the raising or keeping of poultry for profit and any person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall, before using a disposal pit, obtain approval for its use as required by state law.

C. Provisions governing incinerators.

1. If possible, an area away from public view should be selected.

2. No person engaged in the raising or keeping of poultry for profit and no person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall construct or use an incinerator for the disposal of dead poultry unless it is constructed of masonry or metal and has the capability to burn within a time frame approved by the State Veterinarian all poultry raised or kept on the premises at any time.

3. Any person engaged in the raising or keeping of poultry for profit and any person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall, before using an incinerator on his premises to dispose of birds, obtain approval for its use as required by state law.

D. Provisions governing bona fide rendering contract. No person engaged in the raising or keeping of poultry for profit and no person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall dispose of dead poultry through rendering unless he owns a rending facility, or unless he has entered into a bona fide contract for the rendering of such dead poultry, which contract shall be part of the plan for disposal of dead poultry specified by 2VAC5-200-50 of this chapter.

E. Provisions governing bona fide contract with a landfill. No person engaged in the raising or keeping of poultry for profit and no person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall dispose of dead poultry in a landfill unless he owns a landfill, or unless he has entered into a bona fide contract for such disposal of dead poultry in a landfill, which contract shall be part of the plan for the disposal of dead poultry specified by 2VAC5-200-50 of this chapter.

F. Provisions governing composting.

1. If possible, an area from public view should be selected.

2. No person engaged in the raising or keeping of poultry and no person who has entered into a contract involving the raising or keeping of poultry with any other person shall construct or use any facility for the composting of dead poultry unless it conforms to best management practices or acceptable composting guidance as approved by the State Veterinarian.

3. Any person engaged in the raising or keeping of poultry and any person who has entered into a contract involving the raising or keeping of poultry with any other person shall, before composting, obtain approval for composting as required by state law.

2VAC5-200-50. Plans for disposal of dead poultry.

A. No person shall engage in the raising or keeping of poultry for profit and no person shall enter into a contract involving the raising or keeping of poultry for profit with any other person unless he files with the State Veterinarian a plan, has in his possession a dead poultry disposal plan embracing at a minimum provisions consistent with the requirements of this chapter for the disposal of an entire flock of dead poultry. The plan shall be made available upon request of the State Veterinarian or his representative.

B. No person may implement the plan or any amendment to it until it is approved by the State Veterinarian. No person who owns a flock of less than 500 poultry shall be required to have a plan for the disposal of dead poultry. In the event a flock of less than 500 poultry needs to be depopulated or dies, the State Veterinarian, in consultation with the owner, will determine a method of disposal that complies with disease prevention protocol and is environmentally sound.

C. Nothing in this section shall prohibit a person from filing developing a plan on behalf of its contract growers.

2VAC5-200-60. Transportation of dead poultry; sanitation.

A. No person may transport any dead poultry from any premises to an off-farm disposal site without the prior approval, granted by permit on a case-by-case basis, by the State Veterinarian or his representative.

B. No person may transport dead poultry from a farm premises to any off-farm disposal site except in leak-proof containers or leak-proof trucks transporting vehicles.

C. No person may transport dead poultry from a farm premises to any off-farm disposal site unless the dead poultry is enclosed in the transporting vehicle so that feathers and other debris will not be released into the environment.

D. No person may transport dead poultry from a farm premises to an off-farm disposal site unless:

1. The containers are disinfected prior to loading on the truck transporting vehicle and the exterior of the loaded truck transporting vehicle disinfected prior to leaving the farm; and

2. The entire truck transporting vehicle is cleaned and disinfected after unloading at the off-farm disposal site and prior to leaving the off-farm disposal site.

FORMS (2VAC5-200) (Repealed.)

Initial Premises Survey For Burial of Poultry, Form VDACS-03110.

Approval of Dead Poultry Disposal Plan, Form VDACS-03111, eff. 2/93.