04-11085. Spring Viremia of Carp; Payment of Indemnity

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Interim rule and request for comments.

SUMMARY:

We are amending our general indemnity regulations to provide for the payment of indemnity to owners for fish destroyed because of spring viremia of carp. Subject to available funding, the Department may pay eligible owners up to 50 percent of the fair market value for fish destroyed because of spring viremia of carp. In addition, expenses incurred in connection with any cleaning and disinfection required shall be shared according to the agreement between APHIS and the State in which the work is done. We are also amending our interstate movement regulations to prevent the movement of fish infected with or exposed to spring viremia of carp. These actions are necessary to help control and eradicate this disease in the United States.

DATES:

This interim rule was effective May 12, 2004. We will consider all comments that we receive on or before July 16, 2004.

ADDRESSES:

You may submit comments by any of the following methods:

• Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. 02-091-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 02-091-1.
• E-mail: Address your comment to [e-mail]. Your comment must be contained in the body of your message; do not send attached files. Please include your name and address in your message and “Docket No. 02-091-1” on the subject line.
• Agency Web site: Go to http://www.aphis.usda.gov/​ppd/​rad/​cominst.html for a form you can use to submit an e-mail comment through the APHIS Web site.
• Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this docket and submitting comments.

Reading Room: You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call [phone] before coming.

Other Information: You may view APHIS documents published in the Federal Register and related information, including the names of groups and individuals who have commented on APHIS dockets, on the Internet at http://www.aphis.usda.gov/​ppd/​rad/​webrepor.html.

FOR FURTHER INFORMATION CONTACT:

Ms. Jill Rolland, Fishery Biologist, Certification and Control Team, VS, APHIS, 4700 River Road Unit 46, Riverdale, MD 20737-1231; [phone].

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, exotic Newcastle disease, highly pathogenic avian influenza, 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.

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.

Spring Viremia of Carp

Spring viremia of carp (SVC) is a foreign animal disease, caused by a rhabdovirus, that affects several cyprinid species, including goldfish and common carp, of which koi is a variety. SVC was first reported in Yugoslavia in 1969 and has since spread to other European countries, Russia, and the Middle East.

SVC is characterized as a listed disease by the Office of International des Epizooties (OIE). Characteristics of listed aquatic animal diseases include the following:

1. The disease has been shown to cause significant production losses due to morbidity or mortality at a national or multinational level where it occurs;

2. The disease has been shown to, or is strongly suspected to negatively affect wild aquatic animal populations that are shown to be an asset worth protecting;

3. The disease has the potential for international spread, including via live animals, their products, and inanimate objects.

If SVC is discovered in an OIE member country, the affected country must report the discovery to OIE, which will notify the 163 other member countries. As a result, SVC-free countries may cease importing any commodities that could potentially harbor the virus. Such trade restrictions would have a negative economic impact on the U.S. carp industry.

Evidence suggests that SVC can kill a very diverse group of species, including many representatives of the families that are dominant in North America. According to the OIE Aquatic Animal Health Code, susceptible host species for SVC are: common carp (Cyprinus carpio), grass carp (Ctenopharyngodon idellus), silver carp (Hypophthalmichthys molitrix), bighead carp (Aristichthys nobilis), crucian carp (Carassius carassius), goldfish (Carassius auratus), tench (Tinca tinca), and sheatfish (Silurus glanis). SVC is considered extremely contagious, and there are currently no U.S.-approved vaccines or treatments for the virus.

Transmission of the virus may occur through water contaminated with feces, urine or mucus from infected fish, and parasites such as leeches. SVC can survive for long periods of time in water and mud, increasing the possibility of transmission between sites by contaminated equipment. In addition, animals such as birds, which prey on SVC-susceptible species, often travel over very large areas and can transmit the disease between sites. The presence of SVC virus in ovarian fluid also suggests that the disease may be transmitted from parent to offspring as well. Some fish that recover from SVC can become non-clinical carriers of the virus. Non-clinical carriers of the virus can transmit the virus to other susceptible species, but do not show symptoms of SVC.

The disease flourishes in the spring as water temperatures increase, but maximum mortality occurs when temperatures are below 64 °F, since the immune resistance of carp rises as temperatures reach 68 °F. Once the disease is detected, depopulation is necessary given the disease's contagiousness and the possibility of non-clinical carriers that would not exhibit symptoms.

Clinical signs of SVC may be nonspecific and include darkening of the skin, exophthalmia (pop-eye), ascites (dropsy), pale gills, hemorrhages in the gills, skin, and eyes, and a protruding vent with a thick mucoid (white to yellowish) fecal cast. Pinpoint hemorrhages may occur in many organs and are considered an important indicator for SVC. Other internal symptoms include edema, inflammation of the intestine, and enlargement of the spleen. Concurrent infections often occur and may confuse the diagnosis. Mortality can be up to 70 percent in yearlings; adult fish are less affected by the disease.

In April 2002, a koi farm in North Carolina experienced an outbreak of SVC. The farm had sent a sample of the diseased koi to the Fish Disease Diagnostic Laboratories of the University of Arkansas at Pine Bluff, a USDA approved diagnostic laboratory. After a tentative positive diagnosis for SVC, the Arkansas labarotory forwarded the sample to the OIE reference laboratory for SVC in Weymouth, United Kingdom. The OIE laboratory confirmed the tentative diagnosis as positive for SVC on June 25, 2002. The SVC outbreak diagnosis was reported to APHIS, USDA on July 3, 2002.

The affected koi farm operates sites for hatching and resale in North Carolina and Virginia. Due to transfers of fish between sites, both of the farm's sites were considered infected with the SVC virus. SVC virus antibodies have been detected in native and nonnative fish both upstream and 12 miles downstream from the site of the initial outbreak in North Carolina. Additionally, SVC has emerged in populations of wild carp in Wisconsin and Illinois.

The States of North Carolina and Virginia took immediate steps to prevent further spread of SVC; however, the States lacked sufficient funding and personnel to effectively control and eradicate the disease, which poses a potentially serious threat to animal health and the U.S. economy. Therefore, State officials asked the USDA to assist with epidemiology, surveillance, and indemnification to respond to the presence of SVC.

On March 25, 2003, the Secretary of Agriculture authorized a transfer of funds within the Department in order to assist the States of North Carolina and Virginia with SVC-related epidemiology, surveillance, and indemnification. The Secretary authorized this transfer of funds after determining that SVC constitutes an emergency that threatens a segment of agricultural production in the United States. Under part 53 of the regulations, APHIS/USDA indemnified the owner of the affected sites in North Carolina and Virginia. The sites contained a total of 8 million koi and goldfish. Nearly all of those fish, with the exception of 15,000 that died previously from SVC and those that were lost due to bird predation, were depopulated to control the virus. Providing indemnity to the owner of the SVC-infected fish in North Carolina and Virginia to prevent further spread of SVC was an integral step in ensuring the disease's eradication.

APHIS Veterinary Services staff, in cooperation with State authorities in North Carolina and Virginia, have already implemented surveillance and biosecurity auditing measures to continue to monitor for SVC outbreaks. Further, APHIS officials have begun a nationwide surveillance program, within which many carp and bait fish producers are voluntarily participating in SVC testing. Continuing the surveillance program is essential to ensure eradication and/or control of SVC and to relieve foreign restrictions on U.S. trade related to SVC-susceptible species. To regain SVC-free status, the United States, an OIE member country, must test for SVC on farms that raise susceptible species. The tests typically include a sample of 150 SVC-susceptible fish and should take place in the spring and fall in environments where the disease flourishes (usually warm water). The member country must produce negative results for at least 2 years, after which foreign restrictions should be lifted.

We believe the virus can be controlled and contained within high-risk zones through continued surveillance and best management practices. Control of SVC requires depopulation of all ponds holding infected fish and disinfection of ponds, and associated equipment. Currently, carp producers are under no obligation to report the occurrence of SVC to APHIS. Through industry feedback, APHIS determined that farmers are less likely to report SVC outbreaks if they risk the loss of their entire carp stock without indemnification. Indemnification will provide an incentive for producers to report diseased fish and to continue testing for SVC, and therefore assist with USDA's goal of complete eradication in the U.S. carp industry.

Therefore, this interim rule amends the regulations in part 53 to provide for the payment of fish destroyed because of SVC. The specific amendments are discussed below.

Definitions

We have amended the definition of disease in § 53.1 to include SVC among the diseases listed.

Payment for Losses

The regulations in § 53.2 allow for payments by the Department for losses growing out of the destruction of animals affected with SVC. The Administrator may pay claims of up to 50 percent of eligible losses incurred by each producer resulting from the destruction of fish affected with the disease. Producers who collect salvage value for fish destroyed because of SVC will have that amount subtracted from the amount of eligible indemnity payments. In addition, expenses incurred in connection with any cleaning and disinfection required shall be shared according to the agreement between APHIS and the State in which the work is done.

By providing carp producers with indemnity, we can improve the probability of rapid reporting by producers, who are in a position to quickly report a disease situation. This enhances the likelihood of prompt control and eradication. In addition, such payments will benefit carp producers who could otherwise suffer uncompensated economic losses as a result of their participation in a control and eradication program.

Salvage Value

Paragraph (a) of § 53.4 directs operators to destroy animals affected by or exposed to disease promptly after appraisal and dispose of them by burial or burning, unless otherwise specifically provided by the Administrator. Because food fish infected with or exposed to SVC may retain salvage value if they are sold for processing or rendering, we are adding a provision to this section to allow for those options. Producers who collect salvage value for fish destroyed because of SVC will have that value subtracted from the amount of indemnity they are eligible to receive from APHIS under § 53.2(b) resulting from the destruction of fish affected with the disease.

Appraisal of Fish

Cyprinids are produced as food fish, bait fish, and ornamental fish. Carp produced for food or bait would be subject to the requirements of their appraisal classes to determine their fair market value based on their size. With regard to bait fish, smaller fish are more valuable. Fish produced for food, however, gain value as they grow larger. Such factors are commonly used to determine the fair market value of poultry, fish, and other livestock, as described in paragraph (b) of § 53.3. However, the primary type of carp currently affected by SVC are ornamental koi. These fish can carry significant breeding value, which is a valuation category already explicitly included in § 53.3(b). In the case of ornamental fish, their fair market value is determined using the following characteristics: (1) Conformation, which includes body size, shape, proportion and evidence or lack of deformities; (2) quality, which includes coloration, depth of color, tint, hue, and whiteness of background; (3) pattern of colors displayed; and (4) breed differences relating to buyer desire/interest. Again, these ornamental characteristics contribute to the breeding value of the fish; therefore, it is not necessary to amend paragraph (b) of § 53.3 to provide indemnity based on these characteristics.

Claims Not Allowed

Section 53.10 of the regulations lists reasons why the Administrator will disallow indemnity claims. We are adding provisions to the section to require claimants to follow certain precautions to avoid future SVC infection. Specifically, we are requiring that producers depopulate all infected and exposed fish on their farms under USDA or State supervision in order to ensure depopulation is conducted humanely and under optimal biosecurity conditions. Further, we are requiring producers to clean and disinfect affected premises and equipment under USDA or State supervision to ensure the cleaning and disinfection destroys all traces of SVC. We are also requiring that any restocking be done with fish that are certified SVC-free by a USDA-APHIS approved laboratory or in accordance with the diagnostic procedures described in Chapter 2.1.4 of the OIE Manual of Diagnostic Tests for Aquatic Animals, 2003 edition.^[1]

Additionally, we are requiring that the producers demonstrate that their water source(s) are SVC-free. Producers can ensure this by using first-use spring water, spring water without fish, well water, ozone- or ultraviolet-treated surface water, or bore-hole water and by using a water source that is free of wild carp and any other SVC-susceptible species. Finally, we are requiring producers to demonstrate that no wild carp or any other wild SVC-susceptible species are able to migrate into their farming operations. We are confident that these measures will prevent the possibility of SVC reemerging on premises that receive indemnity because of an SVC outbreak.

Interstate Movement Restrictions

We are adding a new paragraph (d)(6) in § 71.3 to describe conditions governing the interstate movement of SVC-affected fish. Carp, especially ornamental varieties, are often shipped to other aquaculture farms or to consumers where they may come into contact with other farmed or wild fish. Therefore, preventing the interstate movement of SVC-affected fish is especially important to prevent the disease from spreading to other areas of the United States. SVC-affected fish being moved in interstate transport directly to a facility where they are to be processed into food for human consumption are exempt from this requirement.

Emergency Action

This rulemaking is necessary on an emergency basis to provide for the payment of indemnity to carp producers in the event that the ongoing nationwide surveillance program reveals additional SVC-affected areas. SVC is characterized as a listed disease by OIE and fits several criteria for this classification, including having a negative affect on wildlife populations that are shown to be an asset worth protecting and having the potential to spread internationally. SVC has been discovered on one fish farm in North Carolina and as a result, fish from that farm as well as an associated farm in Virginia, were depopulated. We will continue the nationwide surveillance program to ensure additional farms are not infected with SVC and to restore relationships with our trading partners. It is also essential to establish interstate movement prohibitions for SVC-affected fish.

Additional outbreaks of SVC may prove economically devastating for carp producers in the United States. Providing indemnity to the producers is instrumental in gaining their support for USDA's ongoing surveillance program, which is essential to ensuring early detection, control, and eradication of SVC. 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 Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We are amending our general indemnity regulations to allow the Department to pay indemnity to owners for fish destroyed because of SVC. Subject to available funding, the Department may pay eligible owners up to 50 percent of the fair market value for fish destroyed because of SVC. In addition, expenses incurred in connection with any cleaning and disinfection required shall be shared according to the agreement between APHIS and the State in which the work is done. These actions are necessary to help control and eradicate this disease in the United States. We are also amending our interstate movement regulations to prevent the movement of fish infected with or exposed to SVC.

Cyprinids are produced as food fish, ornamental fish, and bait fish. Overall, the United States is not a major world producer of SVC-susceptible species. In 2000, the U.S. produced 10,625 metric tons of carp, barbels, and other cyprinids, which was less than 0.1 percent of world production that year. There are little solid data available on this segment of the aquaculture industry. However, in 1998, the USDA conducted a census, the first of its kind, on the cyprinid industry. The survey's responses show that within the United States, 76 farms produced carp for food, 115 farms produced ornamental koi, 65 farms produced ornamental goldfish, and 34 farms produced baitfish. These numbers do not reveal the specific number of separate U.S. farms that produced each of the SVC-susceptible species in 1998, since some farms produced more than one species. In 1998, the United States exported live carp valued at $ 1.7 million.

Currently, SVC has been detected at only one commercial U.S. farm; that farm operates fish-producing sites in both North Carolina and Virginia. SVC virus antibodies were detected in native and nonnative wild fish both upstream and 12 miles downstream from the initial outbreak in North Carolina. Additionally, SVC has emerged in populations of wild carp in Wisconsin and Illinois. Unless SVC is eradicated or controlled, we believe that the disease could spread further in the United States aquaculture industry through normal interstate trade of farmed fish and associated products. Additionally, the presence of SVC in this country damages our trading relationships with other nations. Finally, further outbreaks of SVC also pose a risk to susceptible species of fish in the wild. Officials from the North Carolina Wildlife Commission have detected susceptible fish in the waters of west-central North Carolina; some of those fish, however, are not native to those waters. In order to prevent the further spread of SVC, indemnification is necessary.

The Regulatory Flexibility Act requires agencies to consider the economic effects of their rules on small entities. This rule has the potential to affect cyprinid farms, large and small.

We expect producers with SVC-infected or -exposed fish to benefit from this rule, because they will be eligible to receive indemnity payments for certain losses and costs resulting from SVC. Currently, those producers would suffer total losses, less any potential salvage value, if their stock were infected with SVC. Further, producers would have to carry the full costs of cleaning and disinfection. Under this rule, the Department may pay eligible owners up to 50 percent of the fair market value for fish destroyed because of SVC, subject to available funding. In addition, expenses incurred in connection with any cleaning and disinfection required shall be shared according to the agreement between APHIS and the State in which the work is done.

Affected producers, especially those that own small cyprinid operations, could see benefits, as described above, from this rule. However, the number of potentially affected producers, of any size, appears to be small; 273 operations in the United States raised SVC-susceptible species in 1998.^[2] In 2004, APHIS identified 447 units producing SVC-susceptible species. Based on composite data for providers of the same and similar services, we assume that most of those cyprinid operations are considered small entities. Of the 110,580 U.S. farms engaged in animal aquaculture and other animal production ^[3] in 1997, 99 percent had sales of less than $500,000, well below the Small Business Administration's threshold of $750,000 for aquaculture operations. The number of aquaculture farms likely to be affected is unknown because SVC surveillance is ongoing. However, the portion of the aquaculture industry susceptible to SVC is approximately 2 to 5 percent.^[4]

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

This interim rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

9 CFR Part 53

• Animal diseases
• Indemnity payments
• Livestock
• Poultry and poultry products

9 CFR Part 71

• Animal disease
• Livestock
• Poultry and poultry products
• Quarantine
• Reporting and recordkeeping requirements
• Transportation

Accordingly, we are amending 9 CFR parts 53 and 71 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.

§ 53.1

[Amended]

2. In § 53.1, the definition of disease is amended by adding the words “spring viremia of carp,” immediately after the word “anemia,”.

§ 53.4

[Amended]

3. In § 53.4, paragraph (a) is amended by adding the words “spring viremia of carp or” immediately before the word “infectious”.

§ 53.10

[Amended]

4. Section § 53.10 is amended by adding a new paragraph (f) to read as follows:

§ 53.10

Claims not allowed.

* * * * *

(f) The Department will not allow claims arising out of the destruction of fish due to spring viremia of carp (SVC) unless the claimants have done the following:

(1) Depopulated all SVC-infected and SVC-exposed fish on their property under the supervision of USDA or State officials;

(2) Thoroughly cleaned and disinfected all affected sites and all affected equipment under the supervision of USDA or State officials;

(3) If an affected site is to be restocked after cleaning and disinfection, the claimant must have done the following:

(i) Restocked with fish certified free of SVC by an APHIS-approved laboratory or in accordance with the diagnostic procedures described in the Office of International des Epizooties Manual of Diagnostic Tests For Aquatic Animals;

(ii) Demonstrated that their water sources are from first-use spring water, spring water without fish, well water, ozone or ultraviolet treated surface water, or bore-hole water and are free of wild carp and any other SVC-susceptible species; and

(iii) Prevented the migration of wild carp and any other wild SVC-susceptible species into their farming establishment.

* * * * *

PART 71—GENERAL PROVISIONS

6. The authority citation for part 71 continues to read as follows:

Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.

7. Section 71.3 is amended by redesignating paragraph (d)(6) as paragraph (d)(7) and adding a new paragraph (d)(6) to read as follows:

§ 71.3

Interstate movement of diseased animals and poultry generally prohibited.

* * * * *

(d) * * *

(6) Fish affected with spring viremia of carp may be moved interstate only if they are being moved directly to a facility to be processed into food for human consumption.

* * * * *

Done in Washington, DC, this 12th day of May 2004.

Peter Fernandez,

Acting Administrator, Animal and Plant Health Inspection Service.

Footnotes

1.  http://www.oie.int/​eng/​normes/​fmanual/​A_​summry.htm

2.  Dr. John Green. “Economic Risk in the U.S. Relating to the Fish Industry Susceptible to Spring Viremia of Carp.” (3/10/04)

3.  Establishments primarily engaged in raising animals and insects, excluding cattle, hogs and pigs, poultry, sheep and goats, and animal aquaculture.

4.  See footnote 2.