Regulations, Vol. 31 Iss. 10 Jan 12, 2015

Titles of Regulations: 2VAC5-60. Rules and Regulations Governing the Operation of Livestock Markets (repealing 2VAC5-60-10 through 2VAC5-60-90).

2VAC5-61. Regulations Governing Livestock Dealers and Marketing Facilities for the Purpose of Controlling and Eradicating Infectious and Contagious Diseases of Livestock (adding 2VAC5-61-10 through 2VAC5-61-70).

2VAC5-120. Rules and Regulations Governing the Recordkeeping by Virginia Cattle Dealers for the Control or Eradication of Brucellosis of Cattle (repealing 2VAC5-120-10 through 2VAC5-120-80).

Statutory Authority: §§ 3.2-6001, 3.2-6002, and 3.2-6004 of the Code of Virginia.

Public Hearing Information:

March 19, 2015 - 10 a.m. - Virginia State Capitol, Senate Room 3, 1000 Bank Street, Richmond, VA 23219

Public Comment Deadline: March 20, 2015.

Agency Contact: Charles Broaddus, DVM, Program Manager, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-4560, FAX (804) 371-2380, TTY (800) 828-1120, or email charles.broaddus@vdacs.virginia.gov.

Basis:

State Authority: This regulation is promulgated pursuant to the Code of Virginia as detailed below:

1. Section 3.2-6001 of the Code of Virginia authorizes the Commissioner of Agriculture and Consumer Services, the Board of Agriculture and Consumer Services, the State Veterinarian, and all other veterinarians within the Commonwealth to use their best efforts to protect livestock and poultry from contagious and infectious disease and requires the commissioner, board, and State Veterinarian to cooperate with the livestock and poultry disease control officials of other states and with the U.S. Department of Agriculture (USDA) in establishing interstate quarantine lines and regulations so as to best protect the livestock and poultry of the Commonwealth against all contagious and infectious diseases.

2. Section 3.2-6002 of the Code of Virginia provides the State Veterinarian with the authority to take such measures as may be necessary to prevent the spread of and eradicate contagious and infectious livestock and poultry diseases and authorizes the board to adopt regulations as may be necessary to effectuate the purposes of Article 1 (§ 3.2-6000 et seq.) of Chapter 60 of Title 3.2 of the Code of Virginia. The board and commissioner are also authorized to make the regulations adopted under Article 1 (§ 3.2-6000 et seq.) of Chapter 60 of Title 3.2 of the Code of Virginia to conform, insofar as practicable, to those regulations adopted under federal statutes governing animal health.

3. Section 3.2-6012 of the Code of Virginia provides that any person who operates a stockyard, poultry slaughter facility, or any other premises where livestock or poultry are repeatedly assembled to (i) maintain such premises in a sanitary condition as directed by the State Veterinarian; (ii) obey all orders or regulations adopted pursuant to Chapter 60 (§ 3.2-6000 et seq.) of Title 3.2 of the Code of Virginia as to handling livestock or poultry that may be affected with contagious or infectious disease, or that have been exposed to contagious and infectious disease; and (iii) clean and disinfect such premises or vehicles used in connection therewith, or any part thereof, when ordered to do so by the State Veterinarian or his representative.

4. Section 3.2-6016 of the Code of Virginia provides that it shall be unlawful for any person to, unless in accordance with regulations adopted pursuant to Article 1 of Chapter 60 of Title 3.2 of the Code of Virginia, alter, deface, change from one animal to another, mutilate, substitute, remove, misrepresent, or otherwise interfere with any tag, brand, tattoo, mark, or other identification adopted or used by any county, the commissioner, the board, the USDA, or any other state for the identification of any animal in the Commonwealth for the purpose of controlling or eradicating disease.

Federal Authority: Under federal law, implementation of some of the requirements of this regulation is now mandatory. Effective March 11, 2013, the USDA Animal and Plant Health Inspection Service has added new Part 86 to Title 9 of the Code of Federal Regulations, Chapter 1, Subchapter C, which requires that breeding cattle and certain other livestock moving interstate be officially identified and accompanied by an interstate certificate of veterinary inspection or other documentation, with some exemptions.

Purpose: This regulatory action repeals two existing chapters (2VAC5-60 and 2VAC5-120) and adds new chapter 2VAC5-61. The regulatory action addresses the need for updating current state rules for the operation of Virginia's livestock markets and covers recordkeeping by Virginia's cattle dealers and permanent animal identification, as is necessary in order to facilitate animal disease traceability. The intent of the planned action is to update and enhance requirements concerning animal disease traceability and to ensure that state regulations comply with related federal regulations recently issued by USDA. The expected amendments to the current regulations will provide for a timely and accurate tracing of animal disease outbreaks. An efficient system of tracing animal diseases assists in protecting the food supply, thereby protecting public health as well as the welfare of livestock producers and assists in maintaining and strengthening Virginia's reputation as a reliable source of animals for both domestic and international markets.

Substance: Substantive changes to the regulation:

1. Remove the requirement currently in 2VAC5-60 to collect blood samples for brucellosis testing from breeding cattle handled at livestock facilities (this requirement has not been enforced since 2001).

2. Retain the requirement that breeding cattle be officially identified at livestock facilities, as was the case when they were being bled for brucellosis. It is the responsibility of the livestock dealer or livestock marketing facility to place identification, if needed, and maintain a record of it.

3. Require official identification and recordkeeping of dairy type feeder calves. This requirement was included in order to comply with the new USDA animal disease traceability rule.

4. Make this regulation applicable to buying stations, auctions, and other types of sales where livestock from multiple owners are commingled and assembled for sale in addition to livestock markets and other cattle dealers.

Issues: Through the implementation of 2VAC5-141, Health Requirements Governing the Admission of Agricultural Animals, Companion Animals, and Other Animals or Birds into Virginia, the State Veterinarian and the Office of Veterinary Services have laid much of the groundwork over the past several years in supporting livestock marketing facilities and cattle dealers to be compliant with this regulation. The majority of livestock markets in the state are currently working with the Department of Agriculture and Consumer Services (VDACS) to have all breeding cattle handled at these markets to be officially identified. VDACS recognizes that the USDA requirement for official identification on dairy type feeder calves will cause some difficulty for livestock marketing facilities, and VDACS will continue to work to encourage identification of those feeders before arrival at the marketing facility. An efficient system of tracing animal diseases assists in protecting the food supply, thereby protecting public health as well as the welfare of livestock producers and assists in maintaining and strengthening Virginia's reputation as a reliable source of animals for both domestic and international markets.

The primary advantage to the agency of the proposed regulatory action is improved efficiencies in the animal disease traceability system. This regulatory action poses not disadvantages to the Commonwealth.

VDACS will continue to support livestock marketing facilities to maintain the required records for animal disease traceability, especially when that data can be collected and searched electronically.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed changes will expand the applicability of this regulation to buying stations, update official identification and recordkeeping of dairy type feeder calf requirements, and remove the obsolete requirement that breeding cattle sold at livestock markets be tested for brucellosis.

Result of Analysis. The benefits likely exceed the costs for one or more proposed changes. There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes.

Estimated Economic Impact. This regulation establishes the recordkeeping requirements for livestock marketing facilities and dealers as well as the rules for the operation of livestock marketing facilities, including sanitation requirements. The main goal of the regulation is to minimize and control livestock disease outbreaks, which includes being able to effectively trace livestock for the purposes of disease control.

One of the proposed changes will expand the applicability of this regulation to buying stations and other types of sales where livestock from multiple owners are commingled and assembled for sale in addition to livestock markets and other cattle dealers. According to the Department of Agriculture and Consumer Services (DACS), there are five buying stations that have been identified and will be subject to this regulation. The facilities that are not currently in compliance will incur costs to comply with the requirements of this regulation. These compliance costs primarily include recordkeeping costs such as applying government provided metal tags or privately purchased radio frequency tags and reading and recording them to be able to trace animals.

DACS estimates that it may cost up to $1.83 to place a tag.¹ Metal tags are provided by federal government free of charge and placed on livestock by the facilities or the dealers. The radio frequency tags may be purchased by the facility or the dealers, or may be provided by DACS free of charge as funding allows. In addition, it costs $0.09 (for radio frequency tags) to $0.33 (for metal tags) to read and record the tags.² Both facility personnel and DACS personnel are likely to read the tags.

However, affected facilities have already been in contact with DACS and most of them have been in compliance with the requirements of this regulation. Thus, size of the additional compliance costs for specific facilities upon promulgation of this regulation will depend on their current compliance level. On the other hand, expansion of the jurisdiction of this rule to buying stations will help to effectively trace livestock for the purposes of minimizing and controlling significant livestock disease outbreaks.

The proposed changes will also update official identification and recordkeeping of dairy type feeder calf requirements concerning animal disease traceability to comply with the new United States Department of Agriculture animal disease traceability rule. The federal animal disease traceability rule applies to covered livestock moved interstate, with the requirement that such covered livestock be officially identified for interstate movement. DACS believes that most of the affected entities have already been in compliance with the proposed changes. Thus, no significant economic effects are expected from this change.

Finally, the proposed regulation removes the current requirement that breeding cattle sold at livestock markets be tested for brucellosis. No significant economic impact is expected from this change since this requirement has not been enforced since 2001 due to regional eradication of brucellosis.

Businesses and Entities Affected. This regulation currently applies to 27 livestock markets and 176 registered livestock dealers. An additional five livestock buying stations will be subject to this regulation.

Localities Particularly Affected. This regulation applies throughout the Commonwealth.

Projected Impact on Employment. Buying stations that are not currently applying and reading tags will be required to do so which would increase their demand for labor.

Effects on the Use and Value of Private Property. Buying stations that are not currently applying and reading tags will be required to do so which would increase their compliance cost and may reduce their asset values.

Small Businesses: Costs and Other Effects. The proposed amendments will require buying stations that are not currently applying and reading tags to do so.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no known alternative that would minimize adverse impact while accomplishing the same goals.

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

Legal Mandate.

General: 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 Code of Virginia and Executive Order Number 14 (2010). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed 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.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules (JCAR) is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

_________________________________________________

¹ Radio frequency tags are priced $1.50 per tag and it costs approximately $0.33 for two minutes of labor to place the tag.

² The cost estimate for reading radio frequency tags is $0.09; $0.04 for 15 seconds of labor to read the tag and $0.05 for reading equipment. The cost estimate for reading metal tags is $0.33 for two minutes of labor to manually record the tag.

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

Summary:

This regulation provides recordkeeping requirements for Virginia's livestock dealers and regulations for the operation of Virginia's livestock marketing facilities, including sanitation requirements. The proposed provisions expand the applicability of this regulation to buying stations, update official identification and recordkeeping of dairy type feeder calf requirements, and remove the obsolete requirement that breeding cattle sold at livestock markets be tested for brucellosis.

CHAPTER 61
REGULATIONS GOVERNING LIVESTOCK DEALERS AND MARKETING FACILITIES FOR THE PURPOSE OF CONTROLLING AND ERADICATING INFECTIOUS AND CONTAGIOUS DISEASES OF LIVESTOCK

2VAC5-61-10. Definitions.

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

"Animal waste" means livestock or poultry excreta and associated feed losses, bedding, litter, or other materials.

"Breeding cattle" means all sexually intact cattle 18 months of age or older as evidenced by the presence of one or more permanent incisor teeth, all female cattle that have produced a calf or are exhibiting signs of pregnancy, all sexually intact females of dairy type regardless of age, and any sexually intact bovine of any age that is purchased or sold with the intent that it be used for breeding purposes.

"Cattle" means all domestic and wild members of the genera bos, bison, and bubalus to include domestic cattle, yak, bison, and water buffalo.

"Certificate of veterinary inspection" means an official document, which may be in an electronic format, issued by a federal, state, tribal, or accredited veterinarian certifying the inspection of animals.

"Dairy type" means all cattle of, or primarily of, a dairy or dual-purpose breed of cattle including but not limited to cattle of the Ayrshire, Brown Swiss, Guernsey, Holstein, Jersey, Milking Shorthorn, or similar breeds to include castrated males of such breeds.

"Dealer" means any person who engages in or facilitates, including by electronic means, the business of buying, selling, auctioning, exchanging, or otherwise transferring ownership of livestock in the Commonwealth for his own account or that of another person. A person who only sells livestock of his own production or who buys livestock only for his own production purposes shall not be considered a dealer under this chapter.

"Feeder cattle" means all cattle other than breeding cattle and slaughter cattle.

"Livestock" means all cattle, sheep, swine, goats, horses, donkeys, mules, camels, llamas, and alpacas.

"Marketing facility" means a livestock market; stockyard; buying station; auction, consignment, or other sale venue; or any other premises including those operating video, web-based, telephone, or other types of electronic sales methods, where livestock from multiple owners are commingled and assembled for sale or exchange in the Commonwealth.

"Official identification" means a unique identification number issued by a state or federal program, or other forms of identification approved by the State Veterinarian.

"Premises" means all grounds, structures, and associated equipment used by the livestock facility including yards, docks, pens, paddocks, alleys, sale rings, chutes, scales, and means of conveyance.

"Slaughter cattle" means those cattle that are purchased by or shipped without diversion to a state or federally inspected slaughter establishment for immediate slaughter.

"State Veterinarian" means the State Veterinarian of the Commonwealth of Virginia or his designee.

"State waters" means all waters of any river, creek, branch, lake, reservoir, pond, bay, roadstead, estuary, inlet, spring, or well and bodies of surface or underground water, natural or artificial, wholly or partially within or bordering the Commonwealth or within its jurisdiction.

2VAC5-61-20. Registration.

A. Each dealer in the Commonwealth shall be registered with the State Veterinarian by application to the State Veterinarian on forms that he provides. Each dealer shall renew his registration by no later than January 8 of each even-numbered year thereafter. Anyone operating as a dealer who fails to register is guilty of a violation of this chapter.

B. The State Veterinarian may, after due notice and opportunity for a hearing, deny, suspend, or cancel the registration of a dealer when the State Veterinarian has determined that the dealer has:

1. Violated state or federal laws or regulations governing the interstate or intrastate movement, shipment, or transportation of livestock;

2. Made false or misleading statements in the application for registration;

3. Removed or altered the official identification of livestock;

4. Failed to carry out the requirements of this chapter; or

5. Made false or misleading entries in the records that are required by this chapter.

2VAC5-61-30. Identification of livestock.

A. All livestock, other than feeder cattle that are not of a dairy type, that are handled by or otherwise under the scope of business of each dealer and marketing facility shall be officially identified. Each dealer and marketing facility shall cause official identification to be applied to any livestock handled by or otherwise under the scope of their business that is not already officially identified.

B. Official identification.

1. Official identification for cattle shall be an ear tag bearing a unique identification number issued by an official state or federal program or other form of identification approved by the State Veterinarian. For slaughter cattle only that are purchased by a registered dealer, a U.S. Department of Agriculture back tag shall also be considered official identification.

2. Official identification for sheep and goats shall be any form of identification approved by the U.S. Department of Agriculture scrapie eradication program or other form of identification approved by the State Veterinarian.

3. Official identification for swine shall be a unique and permanent group or individual identification number issued by an official state or federal program and applied to each animal or other forms of identification approved by the State Veterinarian.

4. Official identification for alpacas, camels, and llamas shall be a microchip, scrapie serial tag, or other forms of identification approved by the State Veterinarian.

5. Official identification for horses shall be a microchip, registration tattoo, brand, name, and complete physical description as listed or demonstrated by photographs on either a current certificate of veterinary inspection or Coggins test certificate, or other form of identification approved by the State Veterinarian.

C. Official identification shall not be altered or removed.

2VAC5-61-40. Records.

A. Each dealer and marketing facility shall keep records of the following information, which shall be recorded in a timely fashion upon the completion of each transaction:

1. Record of the official identification numbers of all livestock handled or otherwise under the scope of business other than feeder cattle that are not of a dairy type.

2. The name and physical address of the person, firm, or agent from whom each animal was purchased and the date of such purchase.

3. The name and physical address of the person, firm, or agent to whom each animal was sold and the date of such sale.

B. Records required by this section shall be kept for at least five years. Every dealer or marketing facility, during all reasonable hours, shall permit the State Veterinarian to have access to and be able to copy any records made and retained as required by this section.

C. The State Veterinarian may allow for the records required by this section to be submitted to him in an electronic format he prescribes. Such records, properly submitted electronically to the State Veterinarian, are exempt from the requirement that they be retained for at least five years.

2VAC5-61-50. Inspection of marketing facilities.

All marketing facilities shall be under the jurisdiction of the State Veterinarian and available for his inspection. The State Veterinarian shall assign a designee to each marketing facility for the following purposes:

1. To be present before, during, or after the operation of the marketing facility as necessary for the purpose of ensuring compliance with this chapter.

2. To ensure that livestock bear official identification and that proper record is made of each transaction as required by this chapter.

3. To ensure that livestock are handled in accordance with the Virginia Comprehensive Animal Care laws (§ 3.2-6500 et seq. of Title 3.2 of the Code of Virginia).

4. To ensure proper disposition of all sick or diseased livestock offered for sale in accordance with this chapter or other orders of the State Veterinarian.

5. To make a thorough inspection of the marketing facility to determine if the premises are maintained in a clean, sanitary, and orderly manner.

2VAC5-61-60. Operation of marketing facilities.

A. The premises shall be maintained in a state of good repair. The marketing facility shall contain appropriately constructed and well-lighted livestock handling chutes, pens, and alleys for the inspection, identification, vaccination, and testing of livestock. Electrical power shall be provided.

B. The premises shall be maintained in a clean, sanitary, and orderly manner at all times and must be cleaned after each use. The sanitation process shall prevent contamination of state waters, production of noxious odors, and the breeding of insects or vermin. Run-off water shall be diverted from livestock holding areas.

C. The marketing facility shall be sprayed with disinfectant on a monthly basis or as otherwise required by the State Veterinarian. All alleys, scales, docks, pens, and rings in which livestock have been housed since the previous application of disinfectant must be cleaned of all bedding and animal waste so that the base surfaces can be thoroughly sprayed. No area shall be sprayed that has not been properly cleaned.

D. Isolation pens shall be provided that are clearly labeled, adequately drained, constructed of materials able to withstand frequent cleaning and disinfection, and cleaned and disinfected between each use.

E. Condemned and diseased livestock shall be penned separately from other livestock and shall be removed from the premises within 24 hours of the sale. Such pens shall be plainly marked "For Slaughter Only."

F. Dead animals shall be immediately moved to a designated area of the premises out of public view and removed from the premises within 24 hours.

G. The marketing facility shall ensure that feed and water can be provided to livestock in an appropriate manner when needed or as directed by the State Veterinarian.

2VAC5-61-70. Restriction of livestock movement.

A. Shipment of livestock into other states shall be subject to all federal laws and regulations governing the interstate shipment of livestock and in conformity with the requirements of the state of destination.

B. Whenever the State Veterinarian has reason to suspect or knowledge that a threat to the livestock industry or to public safety exists by the continued conduct of business by a marketing facility or dealer, he may restrict or prohibit the conduct of the marketing facility's or dealer's business for such time as the threat or condition exists.

C. Whenever the sanitation of a marketing facility is not maintained as required in 2VAC5-61-60, the State Veterinarian may, at his discretion, (i) prohibit the use of certain areas of the marketing facility or (ii) limit the activities of such facility with regards to the type or to the destination of livestock sold in such facility. This restriction shall remain in effect until the State Veterinarian has determined that the marketing facility is in compliance.

NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

FORMS (2VAC5-61)

Application for Registration: Virginia Livestock/Poultry Dealers and Marketing Facilities, Form VDACS-03214 (eff. 11/13)