4 TAC §§54.1 - 54.8
The Texas Animal Health Commission (Commission) adopts a
new Chapter 54, which is entitled "Domestic and Exotic Fowl Registration."
Chapter 54 contains the following sections: §54.1, Definitions; §54.2,
Registration Requirements; §54.3, Registration Exemption; §54.4,
Registration Fee; §54.5, Program Requirements; §54.6, Recordkeeping; §54.7,
Movement and Testing Restrictions; and §54.8, Enforcement. Sections 54.1,
54.2 and 54.4 are adopted with changes to the proposed text as published in
the December 19, 2003, issue of the
Texas Register
(28 TexReg 11190). The text of the rules will be republished. Section
54.3 and §§54.5 - 54.8 are adopted without changes to the proposed
text as published in the December 19, 2003, issue of the
Texas Register
(28 TexReg 11190) and will not be republished.
The commission received numerous comments and provides response to comments
at the end of this preamble. In response to four comments the Commission is
adding language to the rules to provide greater clarity to the proposed requirements.
Those changes are found in §§54.1, 54.2 and 54.4 and the rules will
be republished for those sections where changes occurred. This chapter will
become effective on May 1, 2004.
During the last regular legislative session House Bill (HB) 2328 was passed
and signed into law. It requires the Commission to register domestic and exotic
fowl sellers, distributors, or transporters who do not participate in disease
surveillance programs recognized by the Commission. The primary purpose of
the program is to ensure that the various type of fowl being sold or transported
throughout this state do not pose a disease risk which could devastate the
various Texas fowl industries. Texas has recently experienced problems with
diseases in poultry.
In May, 2002, 300,000 Texas chickens were put to death because of an outbreak
of low-pathogenic avian influenza (AI). On April 10, 2003 an outbreak of exotic
Newcastle disease (END) was confirmed in a backyard flock near El Paso, resulting
in the imposition of state and federal quarantines on five counties in Texas
and New Mexico. Since October 2002, the state of California has had to destroy
3.5 million birds to stop an END outbreak there; the disease also has appeared
in Nevada and Arizona.
Many factors can expose Texas livestock, poultry, or wildlife to the risk
of infection by contagious diseases. With increasing consolidation in the
farm and ranch industry, large numbers of animals are kept in close quarters,
creating a situation in which animal diseases can spread more quickly. Besides
jeopardizing the commercial poultry industry, contagious diseases also can
pose a threat to the caged-bird industry and poultry hobbyists. Birds smuggled
illegally into the United States bypass the quarantining and testing procedures
of the U.S. Department of Agriculture (USDA). If a bird is carrying a foreign
virus, owners and animal health officials may not discover the infection until
an outbreak occurs. Because Texas has the longest contiguous state border
with a foreign country, it is at increased risk for the introduction of a
foreign animal disease.
Texas poultry are vulnerable to at least two fast-spreading diseases: END
and highly pathogenic avian influenza (AI). Both diseases are considered "foreign
animal diseases," which means they are not native to the United States. END
is a high-pathogenic disease, meaning it is more likely to spread, while AI
has both a low-pathogenic and a high-pathogenic strain. When an outbreak of
a high-pathogenic disease occurs, international trade agreements ban the affected
areas from international trade until they get a clean bill of health. These
diseases can be carried by the various types of fowl, even if they are not
susceptible.
Most recently AI has been of concern to the state of Delaware, New Jersey,
as well as South-East Asia. In early February Delaware animal health officials
determined that 12,000 chickens on a farm that raises birds for shipment to
New York City was infected by AI. Then AI was discovered in a second flock
of 72,000 chickens in Delaware. Then AI was discovered at four live chicken
markets in northern New Jersey. New Jersey animal health officials believe
that markets likely got the virus from one of the many farms and distributors
who supply them. The strain of AI in the Delaware and New Jersey is different
from the highly publicized outbreak spreading across Southeast Asia that has
caused some human health problems. However the current outbreaks of highly
pathogenic H5N1 avian influenza in poultry in parts of Asia have had immediate
and severe consequences for the agricultural sector. These recent events provide
further support for the value and importance of a registration program that
will allow this state to quickly respond to any such event within our borders.
The Commission is charged under current statutes with broad general responsibility
and authority to eradicate or control diseases or agents of transmission of
diseases affecting livestock, exotic livestock, domestic fowl or exotic fowl.
The purpose of this chapter is to register a seller, distributor, or transporter
of live domestic or exotic fowl where there is a risk for disease exposure
or transmission. The registration will assist with surveillance necessary
to protect Texas fowl from exposure to or infection with a highly contagious
or infectious disease that could adversely affect domestic or exotic fowl
in this state. The current registration requirements are focused on those
areas or activities which create a higher risk for disease transmission.
This regulation will enhance poultry disease prevention, control and response
by requiring that the identified sellers, transporters and distributors of
fowl are either registered or participate in a disease surveillance program
to minimize the impact of diseases.
A part of this program will be a requirement for dealers to make and maintain
records regarding fowl bought and sold. This is one of the most valuable tools
utilized by the Commission in all of their disease surveillance programs.
It is an extremely valuable tool for being able to quickly respond to a significant
avian disease exposure by tracing movement of fowl between buyers and sellers
and thereby provide quick and effective response to control disease transmission
which is essential to eradication efforts. The Commission currently has general
record keeping requirements for fowl dealers which is applicable to most sellers.
That provision is located in Title 4, Texas Administrative Code Chapter 57,
and §57.3. The basic requirement under that section would be replicated
for the Registration Program. That requirement currently provides would be
to maintain records which show the buyer's and seller's name and address,
county of origin, number of animals, and a description, including sex, age,
color, breed, and any individual identification that is already on the fowl.
This proposed rule does not currently require individual identification
of fowl because there is not a widely utilized industry standard and such
a requirement would be unduly burdensome. Rather the Commission will utilize
the dealer recordkeeping requirement for tracing the fowl that are bought
and sold.
This chapter provides for sanitation standards to prevent spread of disease.
The Commission has not initiated any new testing requirements under this
program but all registrants must comply with existing test requirements for
change of ownership or for bringing fowl into Texas from other states.
The transporter portion of the registration program includes people who
provide transportation of fowl as a business and not transportation which
is incidental to someone moving fowl to other locations as part of their business
practice.
The Commission may exempt from registration a person participating in a
disease surveillance program recognized by the commission. Currently the Commission
has identified various disease programs that qualify for an exception. An
example is USDA's "National Poultry Improvement Plan and Auxiliary Provisions"
with a U.S. Avian Influenza Clean component. For persons who wish to qualify
for an exemption through a disease surveillance program USDA is currently
expanding the ability for various fowl species to participate in the National
Poultry Improvement Plan and thereby allowing more fowl to participate in
an acceptable disease monitoring program. The USDA, Animal and Plant Health
Inspection Service (APHIS) have published proposed changes for their requirements
regarding "National Poultry Improvement Plan and Auxiliary Provisions" as
found in 9 CFR Parts 82, 145, and 147. The proposed changes were published
in the Federal Register, May 23, 2003 (Volume 68, Number 100, Page 28169 -
28175 (Docket No. 03-017-1)). They are proposing to amend the National Poultry
Improvement Plan (the Plan) and its auxiliary provisions by providing new
or modified sampling and testing procedures for Plan participants and participating
flocks. The Plan is a cooperative Federal-State-industry mechanism for controlling
certain poultry diseases. Participation in all Plan programs is voluntary,
but flocks, hatcheries, and dealers must first qualify as "U.S. Pullorum-Typhoid
Clean'' as a condition for participating in the other Plan programs. USDA
has proposed adding new U.S. Avian Influenza Clean programs to the regulations
governing turkey breeding flocks and products and to the regulations governing
waterfowl, exhibition poultry, and game breeding flocks and products. Both
of these programs are modeled on the existing U.S. Avian Influenza Clean program
for meat type chicken breeding flocks and products. Like the U.S. Avian Influenza
Clean program for meat type chicken breeding flocks and products, the programs
for turkey breeding flocks and products and waterfowl, exhibition poultry,
and game breeding flocks and products would require that a sample of at least
30 birds must test negative for antibodies to avian influenza, as indicated
by the agar gel immunodiffusion test. Both of these U.S. Avian Influenza Clean
programs will provide flock-owners of fowl, other than poultry, with an optional
way to be exempted from registration with the Commission by registering under
this expanded USDA-APHIS Program.
This chapter also provides a mechanism through which a disease surveillance
program could be recognized by the Commission.
HB 2328 authorizes the Commission to set fees under this section in amounts
that do not exceed the amounts necessary to enable the commission to recover
the costs of administering this section. The Commission proposes to utilize
a graduated fee structure for registrants depending on flock size which takes
into account the economic value of larger flocks as well as an increased disease
risk. The Commission also recognizes that a person from out of state may want
to bring fowl into Texas for the purpose of selling the fowl. These persons
will be required to register and pay a fee. The fee is established at the
top of the range because the commission can not inspect the premise to verify
flock size. The proposed rule does however provide that an out of state registrant
can submit an affidavit certifying a verified maximum flock size, in which
case the registration fee will be the same as the fee for Texas registrants
with a corresponding flock size.
HB 2328 provides that the registration program can be applied to all fowl
being sold in Texas in order to ensure that the Commission can adequately
address the various types of fowl industries and the risk posed by those industries.
Texas is a very large state with a wide variety of activity associated with
the various types of fowl. In order to assess the impact on the various fowl
industries commission staff have developed several documents, which were posted
on the agency's web site, to try and answer the questions posed by members
of the fowl industries as well as to solicit input into the regulatory development
process. Staff received a number of comments. Commission staff held a meeting
for any interested parties on November 18, 2003. Staff presented a discussion
draft of recommended regulations for consideration by the Commissioners at
their December 3rd meeting. The meeting provided commission staff with some
valuable feedback regarding that discussion draft as well as allowed staff
to answer questions. A broad based point of discussion was the desire to have
greater specificity regarding the applicability of the registration requirements
to the various fowl groups. In particular a focus on fowl sales from a producer
premise and classified as a "private treaty sale." Because of a lower disease
risk, the difficulty in registering that type of activity, and the economic
impact for small producers, Commission staff has consistently noted that the
registration requirements would not include that limited and specific activity.
There was also request made to be very specific on the types of birds included
in the registration requirements. Because the Commission's authority over
exotic and domestic fowl is broad based, coupled with the wide variety of
fowl in this state and the difficulty in evaluating the risk associated with
the various groups the task of specifically identifying the types of fowl
is not appropriate. However in response to the meeting on the 18th Commission
staff tried to develop a more specific description for those who need to register
under §54.2.
In clarifying the registration requirements this proposal provides that
the registration requirements apply to the identified groups. The registration
requirements for a seller apply for those sales transactions where:
(i) domestic fowl or domestic and exotic fowl are sold at a location, other
than the premise of origin; or
(ii) domestic fowl or domestic and exotic fowl are sold at a location where
domestic fowl or domestic and exotic fowl from multiple sources are congregated;
or
(iii) any fowl where it has been epidemiologically determined by the commission
to pose a high risk for disease transmission.
These provisions provide greater specificity but do not place registration
requirements on "private treaty Sales" that take place on the premise of origin
of the fowl. Also this proposal is more specific in that the registration
requirements are focused on those situation where
"domestic fowl"
or
"domestic and exotic fowl"
from several sources are concentrated or congregated because those
are activities where there is a high risk of disease transmission. As such
the registration requirements do not include those congregation and sales
of "only exotic fowl." In trying to develop this program Commission staff
recognized that there may be situations where a disease risk develops among
fowl being sold in situations not currently encompassed by the registration
program. The discussion draft discussed at the meeting denoted that the registration
program would also include high risk areas of activity and has been rewritten
with greater specificity to state that the registration could be applied to
any fowl being sold where it has been epidemiologically determined by the
commission to be a high risk for disease transmission. The standard of being
"epidemiologically determined by the commission to be a high risk" is more
specific and allows the Commission to only address those situations on a case
by case basis without trying to develop a wider registration program that
captures activities that are not currently considered to be a high risk, such
as private treaty sales or exotic fowl only sales. The Commission will develop
guidance documents to provide better direction on how the registration program
will be applied.
In response to a comment from the meeting this proposal recognizes that
sellers, distributors or transporters of only fowl classified as baby poultry,
from an NPIP hatchery and accompanied by NPIP Form 9-3, or APHIS Form 17-6
do not pose a disease risk and therefore are not required to register.
Chapter 54 contains the following Sections: Section 54.1 is entitled "Definitions"
and provides definitions for terms utilized in this chapter. Section 54.2
is entitled "Registration Requirements" and identifies those persons who are
required to register and the registration process. Section 54.3 is entitled
"Registration Exemption" and identifies those disease surveillance programs
recognized by the commission as well as provides a mechanism for having a
disease surveillance program recognized by the Commission through a submission
process. Section 54.4 is entitled "Registration Fee" and provides the fees
for registration utilizing a graduated fee structure for registrants depending
on flock size. Section 54.5 is entitled "Program Requirements" and provides
those requirements applicable to a registrant. Section 54.6 is entitled "Recordkeeping"
and provides that a registrants shall keep records; identifies the information
to be retained and the timeframe for retention. Section 54.7 is entitled "Movement
and Testing Restrictions" provides the standards to be utilizing by the commission
in restricting movement of fowl, any required testing as well as those standards
for inspecting fowl being transported in this state. Section 54.8 is entitled
"Enforcement" and provides the mechanisms the Commission may utilize to obtain
compliance for violations of this chapter.
COMMENTS:
The Commission received numerous comments and where questions were asked
of the Commission or recommendations were made of the Commission responses
are provided below.
The first comment received recommended a change to the definition for Fowl
Market. The definition they propose is as follows: "Fowl Market"--Any wholesale
and/or retail location where domestic or exotic fowl are assembled or concentrated
at regular or irregular intervals for sale, trade, barter, or exchange." The
Commission understands the comment to be focused on a simple request of not
targeting just the stated locations in the proposed definition. The Commission
adopts the change in part with the understanding that the change does not
in any way remove those stated locations from the application of the definition.
However we would note that the submitted definition broadens the applicability
of the program by making the definition applicable where "exotic fowl" are
sold. The applicability of the program is based on the sales of domestic only,
and domestic and exotic together.
The second commenter wanted to know why we need to know name and address
of each sale of just one bird to a family for a pet I can't understand. The
person that buys a bird for a pet is just like a dog or cat owner why will
we have to keep records for this type of sale? A prime component of the registration
program is based on record keeping and the purpose is in order to trace any
sales of birds later determined to be exposed or infected with a serious avian
disease. Because the program is focused on requiring registrations for locations
where birds are congregated it does not make sense to create an exemption
from that requirement based on small numbers of sales. An exposed bird is
an exposed bird and we will need to trace all birds sold in order to quickly
and effectively control and eradicate a serious avian disease.
The third commenter noted that §54.2(a), provides for registration
for those situations where domestic fowl or domestic AND exotic fowl but §54.2(c)
is broader because it states registration requirements apply to "any person
intending to operate as a seller, distributor, or transporter of live domestic
OR exotic fowl shall obtain a certificate of registration..." The commenter
notes that these two statements seem contradictory and the language could
be clearer. Also the same commenter notes that the same section, §54.2,
says, "The registration requirements apply to the following groups:", but
there is nothing saying it ONLY applies to these groups. This leaves it open
to ALL groups, even democrats and Baptists and the language should be clearer.
The first comment is well taken by the Commission and clarity is added to
subsection (c) to indicate more correctly that the registration requirements
only applies to those fowl sellers, distributors, or transporters indicated
in subsection (a). Regarding the second comment the Commission believes that
the language is already clear as to who will have to apply for registration
and the requirement does not need to be further enhanced with the addition
of "only."
The fourth commenter states that they are a canary hobbyist with the following
issues:
(1) The problem we are seeing in the laws being written are that they include
our birds and the permits cost will put us under. Example, if I have one zebra
finch I must pay $25.00 per year for a permit to keep it.
(2) It is also of my opinion that the last persons to be exempt from the
permits and control be those who work with purposefully sick animals; yet,
the law is clearly and specifically exempting them while targeting those who
work so hard to keep their birds free of all sickness. Control of private
citizens and their activities that are legal in every manner and of no danger
to anyone should not be required to be licensed, and as you well know, the
cost of enforcement will way outrun the influx of finances. I wish to make
my point clear as to the totally outlandish and unethical fighters of chickens
and dogs; that I very much believe should be charged with great penalty. However,
again, I truly believe that registration a fees will never help the bird people,
it will harm them. I do frequent the "bird marts" where our clubs get together
to sale finch, canaries, and many other birds.
(3) If we have to pay additional permits to transport the birds via carriers
after already having to pay almost $100.00 for air shipping, it again would
make to cost rise tremendously.
(4) I would like to make a statement here also that according to the wording
of the rules, it seems that there are no birds not included. Exotic fowl is
that which is not native to the state and it is not legal to keep any of those
(mocking birds, bluebirds, etc.)
(5) I feel it is best to specifically state the species that are exempt.
(6) And the truth is, it is my opinion that this is a law that should be
vetoed and done away with.
This commenter makes a number of general comments. First and foremost the
program is not applicable to a hobbyist and a person does not need to have
a permit just for possessing or owning a bird. Also as a point of clarity
those exotic fowl hobbyists who sell exotic fowl are only required to register
if they do so at locations where domestic fowl are also sold. Secondly the
exemptions is for flock owners who participate in a recognized program that
includes disease monitoring and a testing program. Participants in these disease
monitoring and testing programs are not working with "sick birds." They are
testing periodically to ensure their flock remains healthy. The registration
program for transporters is not applicable to someone who is transporting
a bird to a show or to someone who is transporting their own birds to sell.
In regard to the coverage of the program being broad, the statute covers all
fowl in order to ensure protection of the various fowl industries; however,
the Commission is actually focusing the applicability of the program only
where persons are selling fowl in locations or situations that are deemed
high risk. The Commission is amending the definition to give better guidance
regarding the to types of fowl groups and that is addressed later in this
document. Lastly the Commission does not have the authority to veto legislation.
That is vested in the Governor and he signed the legislation.
The fifth commenter states the following is what they disagree about regarding
the registration program:
(1) The proposed regulations exempt flocks enrolled in the National Poultry
Improvement Plan (NPIP) U.S. Pullorum-Typhoid Clean (PT) and U.S. Avian Influenza
Clean (LPAI) programs. Or the flocks may be enrolled in Texas Poultry Federation's
avian influenza monitoring program. The problem has been with poultry, specifically
fighting cocks. It appears to me that the subject paragraph is exempting the
large commercial flocks, their transportation, etc. They might have tight
controls but when this flock is exposed (transported) to the elements of the
environment, they are just as susceptible as the back yard flocks.
(2) What provision has been made for the exotic birds making a well bird
check to the vet. Are they going to be subjected to the fees because they
are being transported?
(3) I worry about the parrots that are kept in a controlled environment
that are considered a family pet.
(4) This law is too general and I am afraid that people are going to be
invaded at the drop of a hat.
Regarding the comment on the registration program providing an exemption
for those who follow a recognized disease surveillance program, the statute
provides for such an exemption and those participants are known to be disease
free which makes them a low disease risk. The program does not provide for
a well bird check because the program does not include new test requirements.
However, if fowl is entering Texas or participating in an exhibition, there
are general health certificate requirements that attest to the health status
of the fowl. You do not have to register as a transporter if you are transporting
your own fowl. Parrots being kept as family pets are not subject to this registration
program
The sixth commenter submitted five separate comments. The first of those
comments was that "a budgie, canary or cockatiel could fit the definition
of domestic fowl, as they are kept for exhibition and/or recreation and, although
non indigenous to North America, have been domestically bred for many years
and are considered domesticated by many." The commenter humbly petition TAHC
to address what is considered a "domestic fowl" and provided a definition
for exotic and domestic fowl as follows: "Domestic Fowl--Any species of fowl
domestically propagated and maintained for food, eggs, exhibition, or recreation;
including, but not limited, to: Anseriformes--waterfowl (ducks, geese, swans)
Galliformes--domestic fowl and game birds. Struthioniformes--ostrich and allies
(emus, cassowaries)" and "Exotic Fowl--Any avian species that is not indigenous
to the state and not classified as Domestic Fowl. This term includes parrots
and other non-native birds. It also includes birds commonly kept only as pet
or companion animals, such as canaries, budgies and cockatiels." The Commission
does not consider a budgie, canary or cockatiel to fit the definition of domestic
fowl. The Commission will respond to this request after addressing the other
comments.
The second comment from this commenter stated that the problem I have with
this is most so-called "domestic" birds are not native to Texas (for example,
the chicken is indigenous to Asia); therefore, they correctly fall under the
definition of "exotic fowl." It is more accurate to refer to "any species
of fowl domestically propagated" rather than to a generic "domestic fowl."
If domestic propagation were the basis of defining a domestic fowl, virtually
all types of birds would be included and that is not our intent.
The third comment from this commenter stated that most so-called "domestic"
birds are not native to Texas (for example, the chicken is indigenous to Asia);
therefore, they correctly fall under the state's definition of "exotic fowl."
It would be more accurate to refer to "any species of fowl domestically propagated
and maintained by a person for food, eggs, exhibition or recreation" instead
of "any species of domestic fowl propagated and maintained by a person for
food, eggs, exhibition or recreation." The Commission considers a chicken
to be domestic fowl.
The fourth comment from this commenter noted that Texas cage bird breeders
are asking by what means or distance must domestic and exotic fowl be separated
to avoid creating a commingled situation when both reside on the same premise?
The registration requirements are not applicable to fowl being sold from someone's
premise.
The fifth comment from this commenter stated that "Domestic or exotic fowl"
should be corrected to read "domestic or DOMESTIC AND exotic fowl" in all
places: Not sure what the comment is intending to convey by capitalizing the
above but such a change does not provide any clearer intent and such a practice
would be inconsistent with Texas Register publication requirements.
The sixth comment from this commenter stated that Ringneck Doves, Diamond
Doves. and Button Quail are presently shown in the Softbill class. Exhibitors
want to know if this will constitute a "commingled setting" for other softbills
entered in the class, or for other birds present at the show. I'm wondering
what this will do to the showing of ringneck doves and button quail with the
soft bills at the shows. The Commenter later added that these are miniature
Australian doves (Geopelia cuneata) and miniature Chinese quail (Coturnix
chinensis) that are considered cage or aviary birds and *cannot* be housed
with domestic doves and pigeons or game bird quail. Under a change to the
definitions for domestic and exotic fowl, and provided below, the usage of
the birds would seem to fall into the category of exotic fowl.
The seventh commenter states the commission are going to impose regulations
that will prevent any backyard flock owner from selling any of his birds.
Many of us do not sell enough birds to justify registering and paying a fee
of $25. It is also my opinion that this registration program is the beginning
of regulations that will require anyone owning fowl to register and pay a
fee. I am definitely not in favor of these regulations. The registration program
is not applicable to people who own backyard flocks and sell their fowl from
their premise.
The eighth commenter states that reading the new rules to be put in place
for Texas bird owners/breeders/sellers, I think there needs to be clarification
directed at pigeons and doves. Many of the birds in this country are not native
to the U.S. Where will these birds fall in the new rulings?
This is a difficult question to clearly answer because it is going to be
based on facts, not provided, and applied to the changed definitions below
for domestic and exotic fowl. The basic criteria under the added language
to the definitions for domestic and exotic fowl will be focused on how these
fowl are being used.
The ninth commenter stated that, "I think your efforts are great. As I
see the problem weekly. I raise broilers and other overrun from several hatcheries.
Ninety percent of these are sold directly to our customers. Most are sold
at about 8 weeks old. You will have a problem getting the different cultures
of people giving out the information you will be needing. They are all used
to an "open air" market in their home countries. These are similar to our
flea markets. These open air markets are their Walmart, Winn Dixie etc. This
is a way of life for them. They want a farm raised animal that is fresh not
frozen. As I see the problem as a producer, if you could stop the wholesaler
who is buying the "spent hens from hatcheries, laying houses etc. Then you
will have just as good as control over the sick chickens from entering the
food chain. I have yet to meet a farmer who is raising his own livestock that
objects to anyone from viewing his flock or herd. I will gladly meet with
anyone, if there is a problem on my operation, I want to know it. What will
the age limit be on the chickens or will there be any need for me to register,
since mine are going to be slaughtered. When I leave here I know they are
sold for slaughter. Most are killed that day in fact. Several years ago there
was a grant from the state that would allow a kill floor to be established.
Then the people themselves killed the livestock. Is this program still available?
I do not want to get in the business of slaughtering livestock, but I do have
some customers who want this service. I realize this last question is off
the topic, but any information would be appreciated. Please reply if you have
any questions. Thanks for the time and for allowing me to voice my opinion.
There is not an age limit on the fowl for registration purposes. If they are
sold alive at locations identified in registration requirements then you will
need to register."
The Texas Poultry Federation submitted the tenth comments states the supports
and encourages the Texas Animal Health Commission to adopt the proposed regulations
for HB 2328. Our federation actively supported this legislation during the
session and we feel that this legislation will help to remove potential infected
fowl from markets and consumers who otherwise would not be aware that they
are buying sick fowl. The requirements to participate under this proposal
are currently being complied with by the commercial industry. Once again,
we support the proposed regulation for HB 2328 and encourage the Commission
to adopt it. The Commission appreciates the support.
Comment number 11 was from someone who like to use derogatory terms and
inappropriate four letter words. There was nothing that merited response.
Comment Number 12 was from the Avicultural Society of America (ASA) and
expressed our great concern about the proposed registration of Domestic and/or
Exotic fowl facilities under HB 2328. There is considerable overlap in what
we consider to be a domestic bird versus an exotic bird. Since the registration
requirements are different for these two groups of birds, it is imperative
that their definitions are made very clear. If that is not done, there will
be businesses and individuals that will be unintentionally and unnecessarily
required to register under HB 2328. Our concern lies with certain species
of ornamental quail, pheasants, pigeons, and others that could be included
in the definition of domestic fowl if that group is not completely and finitely
delineated. ASA urges the TAHC to specifically list the birds that are intended
to be included in the category of "Domestic Fowl" to avoid future confusion
about the registration requirements. ASA would like to propose the following
definitions: "Domestic Fowl--Any species of domesticated fowl normally used
for agricultural purposes, i.e., propagated and maintained for the purpose
of producing products for human consumption. Domestic Fowl includes the various
domesticated breeds of chickens (Gallus gallus domesticus), turkeys (Meleagris
gallopavo), Domestic Mallard ducks (Anas platyrhynchos domesticus), Muscovy
ducks (Cairina moschata domesticus), Domestic geese (Anser anser domesticus).
This term does not include ratites; and for Exotic Fowl--Any avian species
that is not indigenous to Texas, is normally used for non-agricultural purposes,
and is not classified as Domestic Fowl. Exotic Fowl includes birds commonly
kept as companion pets, or for ornamental, exhibition, or entertainment purposes.
Exotic Fowl includes budgerigars (a.k.a. budgies or parakeets), button quail,
canaries, cockatiels, finches, parrots, and other cage birds. Exotic Fowl
also includes, but is not limited to, ratites, pheasants, pigeons and doves,
certain ducks and swans, and other non-native birds."
ASA also provided comment number 13 through a different individual which
also respectfully requested that the commissioners provide further clarification
of the definitions, by indicating specific examples of avian species which
will fall under the category of Domestic Fowl and under the category of Exotic
Fowl.
The issue identified by ASA received the most comments, and criticism,
because of the definitions proposed for domestic and exotic fowl. The Commission
proposed broad definitions for several reasons. First the statutory definition
for exotic fowl is a very broad and though there is not a statutory definition
in Chapter 161 for domestic fowl the definition needs to be correspondingly
broad in order to cover all the fowl not covered by the exotic definition.
Also because of the wide variety of various fowl in this state as well as
the diversity of activity associated with fowl in this state it is extremely
difficult to articulate a definition that adequately captures that information.
The comments we received on this issue basically requested the Commission
to provide greater specificity regarding what types of fowl fall into which
category. A number of comments requested the Commission to list various species
in the two definitions and the comments provided various species for inclusion
into one or the other definition.
The Commission has concern about trying to create and utilize definitions
which are based on a laundry list of species. The greatest problem foreseen
is due to the fact that the wide variety and numbers of fowl found in Texas
would make creation of such an all inclusive list nearly impossible. Secondly
some species may have fowl that could be considered in both definitions depending
on how they are used. Lastly most species definition can be very technical
and not easy to apply in the field. However in response to the concern raised
and in order to provide greater clarity to the definitions the Commission
is adding language to both definitions in an attempt to provide greater specificity
as to whom the definition applies. Rather than adding a whole list of species
under the two definitions the Commission is adding language that indicates
the types of activities usually associated with the two different species
because they may be an easier tool for making a distinction between the two
groups.
Basically the Commission is adding language which makes a distinction based
on the usage or type of activities generally associated with the various fowl.
The Commission is adding language to indicate that "domestic fowl" is any
species of fowl domestically propagated and maintained for food, eggs, or
agricultural exhibition and recreation. For "exotic fowl" the Commission adds
language which indicates that it applies to "any avian species that is not
indigenous to Texas, and normally used for non-agricultural purposes, such
as companion pets, or for ornamental, exhibition, or entertainment purposes."
The Commission believes that this type of definition is more helpful because
it identifies the types of activities where these fowl are normally involved
and it will be an easier definition to apply. Also in response to some of
the suggested listed species provided by some of the commenters' the Commission
does include some of those species in the amended definitions in or to provide
some reference species in terms of applying the added definition. The included
species are in no way intended to serve as an all inclusive list.
Also because the registration program is focused on registering those areas
of fowl sales activity where there is a higher disease risk application of
this definition. The registration is focused on those situations where "domestic
fowl" or "domestic and exotic fowl" are concentrated or congregated. Basically
locations, such as fowl markets that sell any type of domestic fowl, which
include those most common fowl such as chickens, turkeys, game fowl, and distinctions
among those types of fowl that are harder to classify will not matter because
the location will require that all sellers need to register. Whereas the type
of sales activity that is utilized by the exotic fowl is focused sales as
companion pets, or for ornamental, exhibition, or entertainment purposes.
These are not the type of events that would generally involve the more agricultural
utilized domestic fowl and not the areas being focused on for registration.
The last comment was for the Commission to consider a combination license
for an individual that is classified as both a transporter AND a distributor.
Currently, the proposed rule requires a $500 registration fee for a transporter
and a $500 registration fee for a distributor. The total registration fee
paid by a person that performs both functions (transporter and distributor)
under the currently proposed rule would be $1000. The cost to the TAHC to
regulate a person performing both functions would probably not be as expensive
as regulating two separate individuals performing only one of these functions.
Therefore, I would like to see an option for a combination license provided
for in the rules that are adopted. The suggestion was to allow a person to
pay a $700 fee for a combination license allowing him or her to transport
and distribute fowl. Please consider this comment in your adoption procedures.
The Commission concurs with this comment and includes a combination fee in
the rule so as to not create a financial hardship for someone who qualifies
under several categories and they will not have to pay all the individual
fees.
Chapter 54 is adopted under the following statutory authority
as found in Chapter 161 of the Texas Agriculture Code. HB 2328 adds to Chapter
161, §161.0411 which authorizes the Commission to register domestic and
exotic fowl sellers, distributors, or transporters who do not participate
in disease surveillance programs recognized by the Commission. The Commission
is vested by statute, §161.041(a), with the requirement to protect all
livestock, domestic animals, and domestic fowl from disease. The Commission
is authorized, by §161.041(b), to act to eradicate or control any disease
or agent of transmission for any disease that affects livestock. If the Commission
determines that a disease listed in §161.041 of this code or an agent
of transmission of one of those diseases exists in a place in this state among
livestock, or that livestock are exposed to one of those diseases or an agent
of transmission of one of those diseases, the Commission shall establish a
quarantine on the affected animals or on the affected place. That is found
in §161.061.
As a control measure, the Commission by rule may regulate the movement
of animals. The Commission may restrict the intrastate movement of animals
even though the movement of the animals is unrestricted in interstate or international
commerce. The Commission may require testing, vaccination, or another epidemiologically
sound procedure before or after animals are moved. That is found in §161.054.
That authority is found in §161.048. A person is presumed to control
the animal if the person is the owner or lessee of the pen, pasture, or other
place in which the animal is located and has control of that place; or exercises
care or control over the animal. That is under §161.002.
Section 161.007 provides that if a veterinarian employed by the Commission
determines that a communicable disease exists among livestock, domestic animals,
or domestic fowl or on certain premises or that livestock, domestic animals,
or domestic fowl have been exposed to the agency of transmission of a communicable
disease, the exposure or infection is considered to continue until the Commission
determines that the exposure or infection has been eradicated through methods
prescribed by rule of the commission. Section 161.005 provides that the commission
may authorize the executive director or another employee to sign written instruments
on behalf of the commission. A written instrument, including a quarantine
or written notice, signed under that authority has the same force and effect
as if signed by the entire Commission.
Section 161.043, entitled, "Regulation of Exhibitions" provides that the
Commission may regulate the entry of livestock, domestic animals, and domestic
fowl into exhibitions, shows, and fairs and may require treatment or certification
of those animals as reasonably necessary to protect against communicable diseases.
Section 161.049, entitled "Dealer Records," provides the Commission may require
a livestock, exotic livestock, domestic fowl, or exotic fowl dealer to maintain
records of all livestock, exotic livestock, domestic fowl, or exotic fowl
bought and sold by the dealer. Section 161.056, entitled "Identification of
Exotic Animals," provides the Commission may adopt rules to establish a standard
method for identifying and tracking exotic livestock and exotic fowl. Section
161.081, entitled "Importation of Animals," provides the Commission by rule
may regulate the movement, including movement by a railroad company or other
common carrier, of livestock, exotic livestock, domestic animals, domestic
fowl, or exotic fowl into this state from another state, territory, or country
as well as the Commission by rule may provide the method for inspecting and
testing animals before and after entry into this state. The Commission by
rule may provide for the issuance and form of health certificates and entry
permits. The rules may include standards for determining which veterinarians
of this state, other states, and departments of the federal government are
authorized to issue the certificates or permits. Section 161.148, entitled
"administrative penalty," provides that the commission may impose an administrative
penalty against a person who violates a rule or order adopted under this chapter.
§54.1.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise:
(1)
"Baby poultry"--Any newly hatched poultry that has not
been fed or watered.
(2)
"Caretaker"--A person who is the owner or lessee of a pen,
or other place on which fowl are located and has control of that place, or
who exercises care or control over fowl.
(3)
"Distributor"--Any person engaged in sales and/or movement
of live domestic or exotic fowl between a production system and a live bird
market or fowl market or acquires domestic or exotic fowl from multiple flocks
or geographic areas for resale to another person.
(4)
"Domestic Fowl"--Any species of fowl domestically propagated
and maintained for food, eggs, or agricultural exhibition and recreation.
Domestic Fowl includes, but is not limited to, the various domesticated breeds
of chickens (Gallus gallus domesticus), turkeys (Meleagris gallopavo), Domestic
Mallard ducks (Anas platyrhynchos domesticus), Muscovy ducks (Cairina moschata
domesticus), Domestic geese (Anser anser domesticus).
(5)
"Exotic fowl"--Any avian species that is not indigenous
to Texas, and normally used for non-agricultural purposes, such as companion
pets, or for ornamental, exhibition, or entertainment purposes. Exotic Fowl
includes, but is not limited to, budgerigars (i.e. budgies or parakeets),
canaries, cockatiels, finches, parrots, and other cage birds. Exotic Fowl
also includes ratites.
(6)
"Fowl Market"--location where domestic fowl or domestic
and exotic fowl are assembled or concentrated at regular or irregular intervals
for sale, trade, barter, or exchange.
(7)
"Hold Order"--A commission document restricting movement
of a flock, unit, or individual fowl pending the determination of disease
status.
(8)
"Live Bird Market" (LBM)--Any facility on which live domestic
fowl or domestic and exotic fowl are congregated for sale or to be slaughtered
and dressed for sale to the public or local restaurants or to be sold live
for any purpose.
(9)
"Person"--Any individual, firm, partnership, corporation,
estate, trust, fiduciary, or other group or combination acting as a unit.
(10)
"Seller"--Any person who sells, trades, exchanges or barters
domestic or exotic fowl.
(11)
"Transporter"--A person that transports, for hire, domestic
or exotic fowl from a producer premises to another premises, a live bird market,
a fowl market or to another person.
§54.2.Registration Requirements.
(a)
A seller, distributor, or transporter of live domestic
or exotic fowl in this state shall register with the commission. The registration
requirements apply to the following groups:
(1)
a seller who sells:
(A)
domestic fowl or domestic and exotic fowl at a location,
other than the premise of origin, or
(B)
domestic fowl or domestic and exotic fowl at a location
where domestic fowl or domestic and exotic fowl are congregated, or
(C)
any fowl where it has been epidemiologically determined
by the commission to be a high risk for disease.
(2)
a distributor of domestic fowl or domestic and exotic fowl.
(3)
a transporter of domestic fowl or domestic and exotic fowl.
(b)
A person participating in a disease surveillance program
recognized by the commission under §54.3 of this chapter is exempt from
the registration requirements.
(c)
Any person intending to operate as a seller, distributor,
or transporter of live domestic or exotic fowl, as provided for in subsection
(a) of this section, shall obtain a certificate of registration and pay an
annual nonrefundable fee. To receive a certificate of registration a person
shall complete an application that includes a list of each location at which
the person conducts the sale, distribution, or transportation of domestic
or exotic fowl. Application forms may be obtained from the Commission. An
application for a certificate of registration or a renewal of a certificate
of registration is made by submitting a completed application and an annual
fee to the Commission. All certificates of registrations shall be issued for
a period of one (1) year and shall expire twelve months from the date of issue.
Renewal applications shall be completed and submitted 30 days prior to the
expiration date.
(d)
The certificate of registration shall be issued in the
name used by the person or entity for transactions involving domestic and
exotic fowl. Any change in the name of a registrant or additions or deletions
of operation locations shall be promptly submitted to the Commission in writing.
The registrant shall maintain proof of registration at each location where
the activity takes place.
(e)
All out of state sellers, distributors, or transporters
of live domestic or exotic fowl that transact business in Texas shall register
under this chapter.
§54.4.Registration Fee.
(a)
The annual registration fee for a seller shall be based
on the maximum number of fowl, during the previous twelve (12) months, being
owned or managed by the registrant at any one time:
(1)
$25.00 for less than 100 fowl
(2)
$100.00 for 100 to 499 fowl
(3)
$200.00 for 500 through 999 fowl
(4)
$350.00 for 1000 to 2,499 fowl
(5)
$500.00 for 2,500 fowl or greater
(6)
$500.00 for any registrant whose flock does not reside
in the state of Texas, except in cases where the out of state registrant can
provides to the Commission an affidavit certifying a verified maximum flock
size, then the registration fee will be the same as the fee for Texas registrants
with a corresponding flock size.
(b)
The annual certificate of registration fee for a distributor
or transporter of fowl shall be $500.00
(c)
The annual certificate of registration fee for a combination
fee for a seller, distributor or transporter of fowl shall be $700.00
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 25, 2004.
TRD-200401459
Gene Snelson
General Counsel
Texas Animal Health Commission
Effective date: May 1, 2004
Proposal publication date: December 19, 2003
For further information, please call: (512) 719-0714