Avian influenza is a serious disease of poultry, with the potential to cause a significant adverse impact on poultry and egg production.  This disease has been known to cause severe harm to poultry, including sudden death without clinical signs, lack of energy and appetite, decreased egg production, soft-shelled or misshapen eggs, swelling of the head, eyelids, comb, wattles, and hocks, purple discoloration of the wattles, combs, and legs, nasal discharge, coughing, sneezing, incoordination, and diarrhea.  Avian influenza can strike poultry quickly without any warning signs. Once established, the disease can spread rapidly from flock to flock.

Avian influenza’s devastation has been felt in the poultry industry throughout this country.  In the 1980s, a widespread outbreak of avian influenza led to the destruction of millions of birds in Pennsylvania and New Jersey.  Identification of avian influenza in Delaware, in February 2004, required the depopulation of approximately 85,000 birds and caused a halt to the sale of live poultry in order to eradicate the disease. Strict measures are therefore required to protect the New Jersey poultry industry from this destructive disease. 

A large portion of the New Jersey poultry industry is associated with New Jersey’s live bird markets.  Due to their broad supply base, these markets are particularly susceptible to avian influenza.  For example, in 2001, a United States Department of Agriculture (USDA) epidemiological study revealed that 40 percent of New Jersey’s bird markets tested positive for the low-pathogen strain of this virus.  Likewise, in February 2004, an outbreak of low pathogenicity avian influenza A (H7N2) was reported in four live bird markets in New Jersey that had been supplied by one of the affected Delaware farms.  Although the New Jersey Department of Agriculture (NJDA) actively monitors the markets and their poultry suppliers for evidence of avian influenza, strict Avian Influenza rules are necessary to better protect the live bird markets, and thus the New Jersey poultry industry, from introduction of this insidious disease. 

In 2004, the United States Department of Agriculture released Uniform Standards for the Prevention and Control of H5 and H7 Low Pathogenicity Avian Influenza in the Live Bird Marketing System (Uniform Standards).  To maintain an effective disease control program for New Jersey poultry, it is essential that the State rules be consistent with USDA guidelines.  As part of the rule proposed for readoption,

the Department adopted in N.J.A.C. 2:9-4.1(c) Part IV of Uniform Standards dealing with official laboratory tests.  The official laboratory tests as outlined in the Uniform Standards include: 

• 1.For virus identification, the Real Time Reverse Transcriptase – Polymerase Chain Reaction (RRT-PCR) test and virus isolation, and
• 2.2. For serological antibody detection, the Agar Gel Immunodiffusion test (AGID).  Laboratory approval for official testing is as follows:
  • i.For virus identification, laboratories must be federally (USDA) approved, and
  • ii.AGID testing may be performed in State or university laboratories approved by the State. These tests will be the official laboratory tests for the State of New Jersey.

In Subchapter 1, N.J.A.C. 2:9-1.1 and 1.2 deal with the payment of indemnities and disposal costs, including language intended to limit the number of times a stakeholder is entitled to indemnity and disposal costs.  This language is intended to protect businesses and individuals who effectively follow biosecurity measures, but still suffer from an outbreak through no fault of their own.  However, individuals or businesses that test positive for Avian Influenza twice within the registration year are not entitled to indemnification and disposal costs.

Subchapter 2, headed General Provisions, delineates the definitions to be used in Chapter 9 and establishes a registration system for live bird markets, poultry distributors and production/supplier flocks.  N.J.A.C. 2:9-2.2 sets forth the registration requirements for live bird markets, poultry distributors and production/supplier flocks operating in New Jersey.  As part of this registration process, applicants will be required to permit NJDA authorized agents access to their premises for inspection and testing. 

Subchapters 3, 4, and 5 describe the sanitation, biosecurity, and surveillance measures required for live bird markets, poultry distributors and production/supplier flocks, respectively.  Minimum biosecurity measures, including routine cleaning and disinfecting requirements, periodic testing and periodic closures are imposed under these subchapters.  These subchapters also set forth the quarantine procedures that will be implemented if avian influenza is found in a live bird market, poultry distributor and/or production/supplier flock.  Finally, these subchapters describe the requirements for sale of poultry to and movement of poultry into live bird markets and movement of poultry into qualified poultry auctions.  Recordkeeping responsibilities have been imposed in connection with these subchapters.

Specifically, Subchapter 3 requires poultry invoices to accompany all poultry entering live bird markets.  Live bird markets are also required to undergo quarterly testing, closure and inspection.  Subchapter 4 requires poultry distributors to obtain a poultry inspection certificate for all poultry moved into a live bird market.  In addition, poultry distributors are required under Subchapter 4 to maintain a logbook certifying that they have complied with approved biosecurity measures.  Poultry distributors must also undergo inspection and testing.  Subchapter 5 prohibits unregistered production/supplier flocks from selling poultry directly to live bird markets.  Random testing and inspection of production/supplier flocks is authorized under Subchapter 5, and production/supplier flocks are required to maintain records of bird transfers, flock test records and biosecurity records.

Proposed amendments have been added to N.J.A.C. 2:9-4.2 regarding the requirements for the sanitation logbook.  Specifically, subsection (c)3 was revised to now permit logbooks from other states to be accepted without the statement required in N.J.A.C. 2:9-4.2(c)2ii.  The purpose of this change is to allow for the use of other states’ logbooks, in particular New York, whose logbook does not contain the required statement.  In addition, N.J.A.C. 2:9-4.2(c)2iii and (c)4ii were amended to include the requirement that the signatory’s name be printed on the logbook as well.  Such a requirement is helpful in identifying the signatory since not every signature is legible.

Subchapter 6 addresses penalties to be imposed for violations of this chapter.  The penalty for a first offense shall be not less than $100.00 nor more than $200.00 per unit or violation, while the penalty for any subsequent offense shall be $200.00 per unit or violation or imprisonment for not more than one year, or both.  In addition, after the second offense, the live bird market, poultry distributor or production/supplier flock could lose their registration for the remainder of the registration year.  Any person aggrieved by the findings of the Division of Animal Health will be afforded the opportunity for a hearing thereon in the manner provided for in contested cases pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.  Subchapter 6 also makes clear that the Division of Animal Health may quarantine any poultry found in violation of Chapter 9.  Such quarantine will not be lifted until the owner can establish proof of compliance or the poultry have tested negative for avian influenza.

As the Department has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a).

Social Impact

The rule proposed for readoption with amendments will affect all segments of the New Jersey poultry industry associated with the live bird marketing system, including live bird markets, poultry producers, suppliers, distributors, dealers, haulers/truckers, wholesalers, animal auctions, and many backyard poultry operations.  No poultry will be allowed entry into the State of New Jersey for movement into the live bird markets and auctions of New Jersey unless those poultry have completed the required avian influenza negative testing or originate from an avian influenza monitored flock. In addition, the rule proposed for readoption will have a positive social impact on poultry consumers by reducing the risk of exposure to avian influenza in poultry products.  Thus, the rule proposed for readoption with amendments will have a positive social impact on New Jersey by protecting the health of New Jersey poultry and the viability of its live bird markets.

Economic Impact

The rule proposed for readoption with amendments will reduce the potential for economic loss in the poultry industry by helping to prevent the introduction of disease into New Jersey commercial poultry.  The poultry industry in New Jersey is currently valued at $4 million and generates revenues of $35.5 million per year.  If the New Jersey poultry population became infected with avian influenza and a proper disease control program were not in place, the entire poultry industry could potentially suffer severe economic damage.  For example, the 2002 low pathogenicity avian influenza outbreak in Virginia cost approximately $140 million dollars and resulted in the loss of close to five million birds.  Thus, the rule proposed for readoption will have a positive economic impact on the State of New Jersey establishing additional biosecurity measures to prevent the introduction of avian influenza into New Jersey flocks and its associated economic loss.   

In the case of an outbreak of avian influenza, indemnity and disposal costs will vary depending on the number of birds affected and the severity of the outbreak of avian influenza.  The cost could escalate to as high as $35.5 million per year if New Jersey’s entire poultry industry was affected.  It is anticipated that federal funding will be available to cover indemnity and disposal costs.  Cost associated with developing and implementing a biosecurity plan could include cost for materials to clean and disinfect, labor costs, lost revenues during downtime, costs for rodent and pest control and potential construction costs for facility renovation, if needed.  Depending on the existing practices of each facility these costs could range from nominal costs to tens of thousands of dollars.   The New Jersey Department of Agriculture will work with stakeholders to develop biosecurity protocols that are effective but not cost prohibitive.  The proposed amendments will have a positive economic impact on poultry distributors who work in multiple states, as the amendment allows the poultry distributor to utilize logbooks from other states meeting certain minimum requirements.  This avoids the requirement that poultry producers operating in more than one state carry multiple logbooks, thereby reducing costs of compliance.

Federal Standards Statement

Executive Order No. 27 (1994) and P.L. 1995, c. 65 require State agencies that adopt, readopt, or amend State regulations that exceed any Federal standards or requirements to include in the rulemaking document a comparison with Federal law.  In an effort to provide a minimum national standard for the prevention and control of low pathogenicity avian influenza, the USDA promulgated general guidelines entitled “Prevention and Control of H5 and H7 Low Pathogenicity Avian Influenza in the Live Bird Marketing System, Uniform Standards for a State-Federal-Industry Cooperative Program” (Uniform Standards), effective October 20, 2004 (APHIS 91-55-076).  A copy of this publication can be obtained by contacting FOIA Officer, Animal and Plant Health Inspection Service, 4700 River Road, Unit 50, Riverdale, MD 20737-1232,  (301) 734-5267 (telephone), (301) 734-5941 (Fax).  The rules proposed for readoption with amendments impose standards that are substantially the same as, but do not exceed those suggested by the USDA in the Uniform Standards.  A Federal standards analysis is not required because there are no Federal requirements or standards on this issue.  Rather, the Uniform Standards are guidelines intended to assist states in meeting their goals for prevention and control of avian influenza in the live bird marketing system.

Jobs Impact Statement

The rule proposed for readoption with amendments is not expected to result in the generation or loss of jobs in the State of New Jersey.  Readoption of this rule will, however, help prevent the loss of jobs that may occur in the poultry industry after an outbreak, and is anticipated to have a positive job impact.

Agriculture Industry Impact

The rule proposed for readoption with amendments will have a positive impact on the agriculture industry by protecting agricultural operations and the farmland on which they operate from exposure to an economically devastating disease.  In order to protect the agriculture industry properly, the rule proposed for readoption will impose restrictions and requirements on businesses and individuals who deal with poultry.  Specifically, the rule proposed for readoption will affect all segments of the poultry industry associated with the live bird marketing system. The industry will be prohibited from importing poultry into the State for movement in live bird markets and auction markets without mandated testing, and will be subject to additional biosecurity measures to minimize the potential spread of this virus that circulates in wild bird populations.  The minimal inconvenience imposed on the poultry industry from the additional measures is necessary to ensure the protection and future vitality of the poultry industry.  The proposed amendments were designed to reduce inconvenience on poultry distributors who work in multiple states, as the amendment allows the poultry distributor to utilize logbooks from other states meeting certain minimum requirements and avoids the need to carry multiple logbooks.

Regulatory Flexibility Analysis

The rule proposed for readoption with amendments may impose compliance requirements on small businesses, as that term is defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. Professional services in the form of veterinary services may be needed to comply with provisions of these rules, which require testing of both flocks and individual birds.  However, it is anticipated that veterinarians and/or animal health technicians who are employees or agents of either the New Jersey Department of Agriculture or the United States Department of Agriculture will be able to provide the necessary professional services. 

Currently, there is no charge for avian influenza testing for the residents of the State of New Jersey.  Veterinarians and/or animal health technicians who are employees of or agents of either the New Jersey Department of Agriculture or the United States Department of Agriculture conduct avian influenza testing within the State.  The New Jersey Department of Agriculture Animal Health Diagnostic Laboratory performs diagnostic testing on these samples with funds allotted through a cooperative agreement with the USDA.  It is anticipated that federal funding will continue to be available for avian influenza testing and supplies. 

The rule proposed for readoption with amendments is intended as a means to avoid the control measures that would be implemented if there were a widespread outbreak of the disease, and the burden of undertaking remedial measures, including the depopulation of flocks, which could be imposed upon individuals and business entities affected by the disease.  Additional recordkeeping will be required to demonstrate compliance with enhanced biosecurity measures.  However, this recordkeeping is minimal and will not be overly burdensome.  Poultry distributors are required to keep records regarding the source flock, the testing done prior to entry, and the delivery location.  No professional assistance, initial capital outlays, or annual cost to the distributor, will be required for compliance with the recordkeeping provisions of these rules.  The proposed amendment is anticipated to reduce recordkeeping requirements since those operations in the Live Bird Marketing System in other states as well as in New Jersey need only one logbook to comply.

The Department has determined that the rule proposed for readoption with amendments represents the minimum standards necessary to protect the New Jersey agricultural industry against the potential devastation that might result from the spread of avian influenza.

Smart Growth Impact

The Department believes that the rule proposed for readoption will have a positive impact on the achievement of smart growth, as it will reduce the threat of the introduction and spread of avian influenza into New Jersey and thereby protect the agricultural community.

Farmland preservation is one of the cornerstones of the “Agricultural Smart Growth Plan.”  Farmland has a positive environmental impact locally and nationwide.  Well-managed, productive farmland provides a portion of the land base necessary to manage watersheds, recharge aquifers, manage wildlife and protect stream corridors.  The New Jersey State Development and Redevelopment Plan outlines many agricultural policies and specific land use techniques that should be implemented in the agricultural regions of the State.  These are the areas with most of New Jersey’s prime farmland, and have the greatest potential for sustaining the agricultural industry in the future.  The rule proposed for readoption will have a positive impact on the State Development and Redevelopment Plan by protecting the economic viability of farms, particularly poultry farms involved in the Live Bird Marketing System, from this economically devastating disease.

Full text of the rule proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 2:9.

2:9-4.2  Poultry distributor sanitation and biosecurity

            (a)-(b)  (No change.)

(c)  All poultry distributors shall maintain a logbook in each vehicle used to transport live poultry certifying that they have complied with the biosecurity protocols in (a) above.

1.               (No change.)

2.      Each logbook shall contain the following information for each entry:

i.-ii.          (No change.)

1.                   The printed name and signature of the agent who performed the act of cleaning and disinfection on behalf of the poultry distributor.
2.                   The NJDA will accept logbooks from other states that meet the requirements of (c)1, (c)2i and (c)2iii above.
3.                   Each logbook must be reviewed quarterly by the poultry distributor to ensure compliance with the NJDA approved biosecurity plan.  Proof of this quarterly review must be shown by a certification containing the following information for each quarter:
   1.                      (No change.)
   2.                    The printed name and signature of the poultry distributor if the poultry distributor is an individual, or the signature of a person authorized to act on behalf of the poultry distributor if the poultry distributor is a business entity; and
   3.                   (No change.)

(d)            (No change.)

                                                                                                                       Charles M. Kuperus

Secretary, New Jersey Department of Agriculture

July 13, 2006