Dr. Nancy E. Halpern
NJDA/Division of Animal Health
P.O. Box 330
Trenton, New Jersey 08625

The agency proposal follows:

Summary

Pursuant to N.J.S.A. 52:14B-5.1, the rules in this chapter are scheduled to expire June 5, 2005. In accordance with N.J.S.A. 52:14B-5.1c, the submission of this notice of proposal to the Office of Administrative Law extends that expiration date 180 days to December 2, 2005. The State Board of Agriculture and Department of Agriculture have reviewed the rules proposed for readoption and, as amended, finds these rules to be necessary, reasonable and adequate, efficient, understandable, and responsive to the purpose for which it was promulgated. Readoption of these rules with amendments, new rules, and repeals, is necessary as it describes various embargoes and import requirements for livestock entering New Jersey in order to meet the legislatively required mandate to provide adequate disease control for New Jersey’s livestock.

New N.J.A.C. 2:5-1 is added to allow the Director, Division of Animal Health to take the actions necessary to protect the health of livestock and poultry in New Jersey by asking the Board of Agriculture (Board) for permission to issue quarantines for specific animal diseases and issue violations and assess penalties for a period of 12 months without prior Board approval, provided, however that the Director advises the Board of the actions taken at the next regularly scheduled Board meeting.

N.J.A.C. 2:5-1 is recodified as N.J.A.C. 2:5-2 and the heading amended as “Livestock and Poultry Prohibition”. New N.J.A.C. 2:5-2.1 is added to address the imposition of an embargo as a result of disease outbreaks in other state. Generally, an embargo is a legal prohibition on commerce. Embargoes in this rule deal with the movement of animals coming from other states. Since New Jersey has no authority to issue a quarantine outside of its borders, this new rule will allow the Department to stop the import of animals either suspected of or confirmed as having a contagious or infectious disease or to set up specific entry requirements based upon the originating location of the animals. N.J.A.C. 2:5-2.2 (recodified N.J.A.C. 2:5-1.1) has been amended to strengthen the requirements for the prevention of Vesicular stomatitis and to allow the division ways to control the disease if found in New Jersey.

Vesicular stomatitis (VS) is a viral disease, not found in New Jersey, that can affect horses, cattle and pigs, and occasionally, sheep, goats, deer and exotic animals, causing blisters to form in the animal’s mouth, on teats or along the hooves, resulting in excessive salivation, lameness or oozing sores. The clinical signs of VS can cause concern because they mimic those of a highly contagious foreign animal infection foot-and-mouth disease (FMD). Laboratory tests must be run to differentiate between the two diseases. Unlike FMD, VS also can affect horses and other members of the equine family. This contagious viral disease is a major economic and health concern to New Jersey’s livestock industry.

N.J.A.C. 2:5-2 is recodified as N.J.A.C. 2:5-3 and contains requirements for the eradication and control of equine infectious anemia (EIA) in equids. This viral disease is a major economic concern in the horse industry and is transmitted by biting insects. This subchapter was recodified and amended to reflect the change that the Department of Agriculture will accept the Enzyme Linked Immunosorbant Assay as an official test for this disease. This amendment also makes N.J.A.C. 2:5 consistent with N.J.A.C. 2:3, where this change has already been instituted.

Subchapter 3 is being repealed because it only dealt with one specific poultry disease, Avian Influenza. This repeal makes N.J.A.C. 2:5 consistent with N.J.A.C. 2:3 and N.J.A.C. 2:9. In reality there are many poultry diseases that would require the same prevention and quarantine protocols to ensure that the spread was contained as rapidly as possible to prevent further flock mortality and devastating economic consequences.

A new Subchapter 4, Livestock and Poultry, has been added. This subchapter contains general requirements for the control and eradication of poultry diseases that may be devastating to New Jersey’s Poultry industry. Worldwide, there are many poultry disease that can cause varying amounts of clinical illness in poultry. Some diseases such as Avian Influenza or Exotic Newcastle Disease are extremely infectious and fatal. Because these types of diseases can infect chickens, turkeys, pheasants, quail, ducks, geese, and guinea fowl, as well as a wide variety of other birds, an outbreak would cause a major economic threat to the poultry industry of New Jersey and the nation. The new rules in N.J.A.C. 2:5-4.1 explain when a quarantine will be placed upon a premise and how the quarantine can be lifted. The new rules in N.J.A.C. 2:5-4.2 explain the biosecurity requirements that must be met. This section addresses cleaning, disinfection and disposal of any infected premises, protective clothing, or equipment.

New N.J.A.C. 2:5-5 is added to address penalties to be imposed for violations of this chapter. The penalty for a first offense shall be not less than $100.00, while the penalty for a second offense shall be $200.00 or imprisonment for not more than one year, or both. 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 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.

As the Department has provided a 60-day comment period on this notice of proposal, this notice is exempted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a) 5.

Social Impact

The prevention and control of disease by the regulation of programs necessary to prevent the importation of diseased and/or disease carrying animals that may infect New Jersey’s livestock and poultry population is a key element to the viability of animal agriculture. These rules proposed for readoption with amendments, new rules, and repeals, set updated requirements for the socially beneficial programs that prevent the introduction of diseases harmful to the health of the animal husbandry industry. The changes have been made to reflect scientific updates since the last adoption of these rules.

The enhancement and maintenance of these rules to protect New Jersey’s livestock and poultry from infectious and contagious diseases not only protects their owners and producers, but also provides a safe and healthy product for consumers.

The rules proposed for readoption with amendments, repeals and new rules have streamlined the process for issuing quarantines and embargoes. The amendments for biosecurity and quarantine are being put into place to effectuate a quicker halt to a disease outbreak.

Therefore, for the reasons set forth in the Summary and Social Impact above, the rules proposed for readoption with amendments, new rules, and repeals will have a positive social impact.

Economic Impact

The burden of these rules proposed for readoption with amendments, repeals and new rules falls upon the farmer, consumer and the intermediaries between the two. Compliance with rules proposed for readoption with amendments, repeals and new rules, imposes minimal additional costs to farmers and dealers as a result of processing paperwork, treating any diseases found, and following the additional biosecurity requirements. However, even these costs are outweighed by the safety of the products produced and a higher economic return from the product as a result of compliance with these amended rules. Since the costs of treatment and eradication of diseases far exceed the costs of surveillance in prevention, it is in the best interests of New Jersey’s agriculture industry to have strong regulations in place for quarantines and embargoes. In general, a larger and healthier supply of animals gets to market, commands a better price, and the consumer benefits by receiving a safe and nutritious food product.

Therefore, for the reasons set forth in the Summary and Social Impact above, the rules proposed for readoption with amendments, repeals and new rules will have a positive economic impact.

Federal Standards Statement

Executive Order No. 27 (1994) and P.L. 1995, c. 65 require State agencies which adopt, readopt or amend State regulations that exceed any Federal standards or requirements to include in the rulemaking document a comparison with Federal law. A Federal standard analysis is not required because the subject matter of the readoption with amendments, new rules and repeals is governed by the New Jersey Department of Agriculture in accordance with, but not exceeding applicable Federal requirements or standards. In 9 CFR 145, Animals and Animal Products, The National Poultry Improvement Plan establishes standards and guidelines for the poultry industry with respect to certain diseases including Pullorum disease and Avian Influenza, among others. Under the auspices of The National Poultry Improvement Plan the United States Secretary of Agriculture issued a “Declaration of Extraordinary Emergency Because of Exotic Newcastle Disease,” (68 FR 1432 Docket No. 03-001-1, 68 FR 3507 Docket No. 03-001-2, 68 FR 3561 Docket No. 03-003-3), effective (CA--1/6/03, NV--1/17/03, AZ--2/12/03) enabling APHIS of the USDA to conduct a program for the eradication of END wherever it may be found in the each of the respective states. In addition, APHIS has outlined uniform standards for a State-Federal-Industry Cooperative Program for the Prevention and Control of H5 and H7 Low Pathogenicity Avian Influenza in the Live Bird Marketing System, which became effective October 20, 2004. The rules proposed for readoption with amendments, new rules and repeals are substantially the same as, but do not exceed, those imposed by Federal law and uniform standards.

Jobs Impact

The rules proposed for readoption with amendments, new rules and repeals will not result in the generation or loss of any jobs in the State.

Agriculture Impact

For the reasons set forth in the Summary, Social Impact and Economic Impact above, the rules proposed for readoption with amendments, new rules and amendments will have a positive impact on the agriculture industry, particularly the livestock and poultry industry, since it minimizes the introduction and/or spread of disease to New Jersey livestock and poultry.

Regulatory Flexibility Analysis

While most farmers are small businesses as that term is defined by the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., the rules proposed for readoption with amendments, new rules and repeals do not impose any new or increased reporting, recordkeeping, and/or other compliance requirements beyond those already mandated by the authorizing statutes. In order to comply with these rules, professional services, in the form of veterinary care and treatment will have to be retained. The costs of these services will vary depending upon animal species, herd size and type of disease. Horse dealers will continue to provide negative Coggin’s tests for horses they take to auctions. There will be no capital expenditures.

Without the promulgation of these rules, New Jersey livestock farmers would not be permitted to participate in interstate and international commerce. Since these rules are established to control the spread of disease and protect the public health, welfare and safety, no differing standards based on business size are permitted. The New Jersey Department of Agriculture has carefully attempted to balance the need for disease control with the impact on the citizen.

Smart Growth Impact

The rules proposed for readoption with amendments, new rules and repeals will have no impact on smart growth or upon the State Development and Redevelopment Plan.



Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 2:5.

Full Text of the rules proposed for repeal may be found in the New Jersey Administrative Code at N.J.A.C. 2:5-2.3, 3.1, 3.2 and 3.3.

Full text of the proposed amendments and new rules follows (additions indicated in boldface thus; deletions indicated in brackets [thus]:

SUBCHAPTER 1. DELEGATION OF QUARANTINE AUTHORITY

2:5-1.1 State Board Approval

(a) At least once each calendar year, and at any other time deemed necessary, the Director, Division of Animal Health, shall advise the State Board of Agriculture of any contagious or infectious animal diseases as may be present in the State.

1. If, in the opinion of the Director, a disease is persistent and difficult to eradicate, authority may be requested from the State Board of Agriculture for the Division of Animal Health to issue prospective quarantines and violations and assess penalties for that disease, without prior board approval for a period not to exceed 12 months.

2. If a quarantine is issued pursuant to this authority, at the next regularly scheduled State Board of Agriculture meeting, the Director shall notify the Board of the quarantine and any violations issued, penalties assessed, or any other actions taken.

SUBCHAPTER [1.] 2. LIVESTOCK AND POULTRY PROHIBITION

2:5-2.1 Livestock and poultry prohibition

(a) Premises, areas, counties or states suspected or found positive by official laboratory confirmation for a contagious or infectious disease may be embargoed by the New Jersey Department of Agriculture.

(b) Once official laboratory confirmation is received that a premise, area, county or state is positive for a contagious or infectious disease, such premises, areas, counties or states shall remain embargoed until the State Veterinarian of the New Jersey Department of Agriculture is satisfied that the risk of disease exposure no longer exists.

2:5-[1.1] 2.2 [Livestock prohibition -]Vesicular stomatitis

(a) (No change.)

(b) Permits will be granted only for those animals that are accompanied by an approved Certificate of Veterinary Inspection which includes a statement that:

1.-3. (No change.)

4. The animals must have a negative test for vesicular stomatitis performed by an approved laboratory [within] 10 days [of] prior to shipment.

(c) (No change.)

(d) Premises suspected or found positive by official laboratory confirmation for
vesicular stomatitis shall be quarantined by the Division of Animal Health, New Jersey Department of Agriculture.

(e) Once official laboratory confirmation of vesicular stomatitis exists, such premises shall remain under quarantine until the State Veterinarian of the New Jersey Department of Agriculture is satisfied that the risk of disease exposure no longer exists.

SUBCHAPTER [2.] 3. EQUINE INFECTIOUS ANEMIA

2:5-[2.] 3.1 Definitions

The Following words and terms, when used in this subchapter, shall have the following meanings, unless they context indicates otherwise.

“Official test for equine infectious anemia”, means the equine infectious anemia agar gel immuno-diffusion (AGID) procedure [recognized and controlled by the United States Department of Agriculture as conducted by the New Jersey Department of Agriculture’s Division of Animal Health Laboratory] or the Enzyme Linked Immunosorbant Assay (ELISA) procedure as conducted in accordance with the following. All imported equidae shall have had a negative official test for equine infectious anemia conducted at a jointly approved United States Department of Agriculture – New Jersey Department of Agriculture laboratory within the past 12 months. Equidae younger than six months and accompanied by a dam that has a negative official test within the past 12 months are exempt from this testing requirement.

2:5-[2.2] 3.2 (No change in text.)

[2:5-2.3 Importation for immediate slaughter]

2:5-[2.4] 3.3 Test requirements for transport

(a) No horse or other equidae six months or more of age, unless exempted by the provisions of N.J.A.C. 2:5-[2.5] 3.4 or [2.6] 3.5 shall be transported on any public highway within the [state] State unless the custodian of such animal has in his or her possession during the period of such movement a report of a negative agar gel immunodiffusion test for equine infectious anemia for such animal taken within the past 24 months.

1.- 4. (No change.)

2:5-[2. 5] 3.4 Test requirements for sale or other change of ownership

(a) No horse or other equidae six months or more of age, unless exempted by provisions of this section or N.J.A.C. 2:5-[2.6] 3.5 shall be sold, exchanged, bartered or given away unless such animal has been subjected to an agar gel immunodiffusion test for equine infectious anemia and reacted negatively within 90 days prior to such transfer [to] of ownership.

1.-3. (No change.)

2:5-[2.6] 3.5 Other authorized movement of transfer

(a) The provisions of N.J.A.C. 2:5-[2.4] 3.3 and [2.5] 3.4 shall not apply to any horse or other equidae which is imported, sold, exchanged, bartered, given away or transported under permit from the Director of the Division of Animal Health, New Jersey Department of Agriculture for purposes of immediate slaughter, research, return to the state, country or farm of its origin, or other authorized purpose provided written authorization for such movement or transfer is obtained in advance thereof from the Director.

1.-3. (No change.)

(b) The provisions of N.J.A.C. 2:5-[2.5] 3.4 shall not apply to any horse claimed in any claiming race conducted by any race track licensed by the New Jersey State Racing Commission and such horse need not be retested for equine infectious anemia provided such horse and all other horses admitted to said track had been tested and found negative for the disease within 24 months prior to the date of the claim.

SUBCHAPTER 4. [RESERVED] LIVESTOCK AND POULTRY

2:5-4.1 Quarantine of premises containing livestock and poultry

(a) Premises suspected or found positive by official laboratory confirmation for a contagious or infectious disease shall be quarantined by the Division of Animal Health, New Jersey Department of Agriculture.

(b) If official laboratory confirmation is received that a premise is positive for a contagious disease, such premises shall remain under quarantine until the State Veterinarian of the New Jersey Department of Agriculture is satisfied that the risk of disease exposure no longer exists.

(c) At the time of quarantine, the Division of Animal Health will outline the conditions of quarantine based on the specific disease.

(d) If, based upon official laboratory confirmation, the premises are found to be free from a contagious or infectious disease, the quarantine will be lifted.

(e) Premises suspected or found positive by official laboratory confirmation for Avian Influenza shall be quarantined by the New Jersey Department of Agriculture according to the quarantine protocols set forth in N.J.A.C. 2:9.

2:5-4.2 Biosecurity

Any premises, vehicles, protective clothing or equipment that may have been contaminated due to an outbreak of infectious or contagious disease shall be cleaned, disinfected and/or disposed of to prevent transmission of disease from one premise to another.

SUBCHAPTER 5. PENALTIES

2:5-5.1 Penalties for violations of this chapter

(a) Any person who shall violate the provisions of this chapter shall be liable for a penalty of not less than $100.00 per unit or violation nor more than $200.00 per unit for a first offense.

(b) For a second or subsequent offense, the penalty shall be $200.00 per unit or violation or to imprisonment for not more than one year, or both.

(c) A unit is any division or quantity accepted as a standard of measurement or exchange. Where it is possible to determine the exact number of animals (livestock or poultry), the Department will use that as the basis for calculating a penalty. Where the exact number of animals is not known, the department will use the next identifiable quantity as the unit (that is, crate or truckload) on which the penalty will be based.

(d) Every day upon which a violation occurs at the same individual location or by the same individual or persons representing that individual shall be considered a separate violation.

(e) The Division of Animal Health shall make an initial determination as to whether a violation exists.

(f) Any person who is aggrieved by the determination of the Division of Animal Health pursuant to (e) above shall, upon written request transmitted to the Department within 20 days of the notice of violation, be afforded the opportunity for a hearing thereon in the manner provided for 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.

1. Requests for hearings shall be sent to Director, Division of Animal Health, New Jersey Department of Agriculture, P.O. Box 330, Trenton, New Jersey 08625?0330.

(g) The State Board of Agriculture shall make a final determination as to whether to affirm, amend or overturn any violations or penalties assessed thereon following a hearing as provided in (f) above.

(h) Orders for penalties or to enjoin continuing violations may be enforced by summary action brought in the name of the Department in superior court or municipal court.


________________________________
Charles M. Kuperus, Secretary
New Jersey Department of Agriculture
May 25, 2005