February
21, 2007
Department of Agriculture
Bureau of Dog Law
Enforcement
Attn: Mary Bender
Re: Proposed Dog Law
Enforcement Regulation #2-152 (#2559)
This commentary is sent on behalf of the Pennsylvania
Federation of Dog Clubs concerning the Proposed Rulemaking of the Pennsylvania
Department of Agriculture with respect to portions of 7 Pa. Code concerning Dog
Law Enforcement as published in the Pennsylvania Bulletin (36 Pa.B. 7596) on
Saturday, December 16, 2006.
The Pennsylvania Federation of Dog Clubs is an umbrella
organization consisting of about 100 dog clubs, humane associations and dog
training facilities with a total membership of over 4,000 people. Some members engage in participation in the
sport of dogs, competing in conformation, obedience, herding, lure coursing,
tracking, and many other types of competition, primarily at events run under
the rules of the American Kennel Club. Others
are pet owners who want to learn more about their breed, about dog shows, or
about training their dogs. Many
participate in breed rescue organizations, taking in pets that are no longer
wanted by their owners and finding them new homes.
Members of these constituent clubs are licensed as
kennels. However, as will be discussed
below, they are not commercial in nature.
They do not make a net profit and are not businesses under the
provisions of the Internal Revenue Code.
These are the quintessential hobby breeders. Proper care and treatment of animals is of
great importance to our constituents.
I have been involved in breed rescue as a member of my
local and national clubs, taking in dogs whose owners abandoned or abused them. I fostered them until suitable homes could be
found and then placed them in new, loving homes. I have chaired single breed specialty dog
shows and been assistant chair for all breed shows, as well as the President and
Board member of both types of clubs. I
have also shown dogs actively for almost 20 years and have taught conformation
handling classes.
Professionally, I served on the New York State Bar
Association Special Committee on Animals and the Law and was the General
Counsel and then the Executive Director of New York City Animal Care and
Control (NYCACC), a non-profit corporation under contract with the City of
GENERAL THEMES
There are several themes
reflected in this response, with comments discussed in more detail in the sections
which following.
1. Most of the regulated kennels and breed rescue groups
that rehome dogs within the Commonwealth are well served by the present
regulations. We support the Department’s
efforts to regulate better large, difficult to regulate, substandard puppy
factories, to regulate establishments that fall within the statutory
definitions, but have avoided regulation, and to implement licensing for rescue
organizations, especially those bringing dogs into the state. While the Commonwealth may enact regulations
more strict than those of the Animal Welfare Act, we believe that the
regulations as drafted will bring severe hardship to small kennel owners who
are hobby breeders not being targeted specifically by the Department for
increased enforcement.
2. Some of the new definitions create problems which did
not exist before, while other frequently misunderstood terms remain
undefined. The unanticipated
consequences of enforcing the regulations may bring legal challenges that could
compromise, or further erode, enforcement of the statutes.
3. The proposed regulations define processes and not the
ends to be achieved. There may be
alternate methods of reaching the unstated objectives both better than those
proposed and less onerous for the regulated community, especially the small
fancier kennels. This is especially applicable to instances where the Animal
Welfare Act provides significantly more reasonable alternatives for the small
kennel owner than those proposed by the Department. Suggestions are made for alternatives and
improvements. However, knowing more
details of the nature of the enforcement problems might enable us to make more
specific recommendations.
4. The Department has significantly understated the
costs of implementing the regulations for the Commonwealth, local governments,
the public and the regulated community.
5. Sometimes the regulations are internally inconsistent
and create standards that are so absolute as to be impossible to achieve in
real world conditions. They risk the
type of court challenge to the regulations and loss of cases that the
Department hopes these proposed regulations will, in part, remedy.
GENERAL COMMENTS
The proposed regulations were drafted with great thought
given to the health and safety of animals housed within the Commonwealth.
The Department has done an extensive review in an effort
to improve the clarity and enforceability of the existing regulations. However, there are a number of instances
where the proposals fall short of the mark.
At times, the proposed
regulations go beyond merely addressing industry changes, clarifying vague or
outdated regulations and clarifying the enforcement powers and duties of the
Department and its employees (36 Pa.B. 7596).
It would be helpful if regulations were written in plain English so
those regulated might understand better the rules that are being applied to
them.
When evaluating proposed regulations, it is prudent not
to rely on the good will and intent of those currently charged with their enforcement,
since those individuals change over time.
Rather the assessment requires a critical look at the potential for
misunderstanding of the drafter’s intent in the future should a less
enlightened administration be charged with enforcement. The problems with substandard puppy factories
and generic rescue groups bringing dogs into the Commonwealth are well known. Although there is little information accompanying
the proposed regulations to define specific problems, the above issues alone
justify some new regulations. Other
areas less clearly need the proposed regulations, especially those stricter
than the federal regulations. All the
reviewer is left with in those cases is the Department’s statement that new
regulations are required and that they will address the issues.
Part of the problem in assessing the need for these new
regulations is the lack of information on the specific instances of problems
needing to be addressed. While we wish
to accept at face value the assertion that these proposed regulations will
solve the Department’s enforcement problems, there is no evidence presented that
these measures will improve enforcement or that improving enforcement of the
current regulations could not achieve the same ends, especially with respect to
dogs raised in homes and small, private Class I kennels.
FUNDAMENTAL PREMISE
The proposed (and existing)
regulations attempt to apply standards suitable for the equivalent of a large
scale manufacturing environment both to puppy factories and to the workshops of
skilled craftsmen, experts in their trade.
The practices associated with the high volume, low cost “manufacturing”
of dogs for commercial sale to the public differs greatly from the methods and
care given to breeding and raising dogs by the craftsman whose breeding is
aimed at producing the best specimens of his or her breed. The craftsman carefully handpicks the best
family for each puppy in every litter. The
craftsman continually tests the results of his or her work against internal
standards and the standards of experts in the field. Whether the success of his or her craft is
evaluated for conformation against the Standard for Excellence of the Breed,
against objectively stated performance criteria in obedience or agility,
against training criteria and instinct in field competition or against other
criteria, experts evaluate the results.
The craftsman spends time analyzing
pedigrees, breed characteristics, performance abilities, temperament and other
factors before each breeding. Each litter
is part of an overall plan for the improvement of the breed. The skilled breeder who tests the product of
his or her breeding against the standards and practices of the breed is engaged
in a very different endeavor than the puppy factory whose goal is to maximize
profits and minimize costs while producing large numbers for sale. In fact, most breeders do not realize any net
profit from their endeavors – they are not truly commercial. Substandard puppy factories are more
interested in quantity of output, not in the quality of their product. The establishments of the craftsmen are the
Commonwealth’s first line of defense against substandard puppy factories
getting a monopoly on having dogs available to the public – and a lesser
quality puppy at that.
Small craftsman kennels, the people
from whom the healthiest and best socialized pets are obtained, comprise the largest
group falling within the scope of these proposals. They are not the group stated as the target
of these revisions, yet they are the group most impacted. Improved regulation and better enforcement are
needed to correct the problems in substandard puppy factories, but placing
undue burden on the craftsman does nothing to further these goals.
There is no requirement in the
statute, and none in logic, that requires the same treatment for all kennels
regardless of purpose. In fact, the very
inclusion in the statute of different purposes for operation and different
types of establishments presupposes that there may be different rules applied
if, in the Department’s discretion, such differences are warranted. Other jurisdictions take this distinction
into account; so can the Commonwealth.
DEFINITIONAL ISSUES
By
creating broad new definitions and more stringent regulatory requirements
without making distinctions among types of kennels, the regulations penalize
reputable breeders, while not doing more to protect the dogs in their care. Parts of the regulations are unclear as to
how they comport with existing law; in some cases they may be at variance with
such law, encroaching on the powers of the legislature. Some proposed changes may require legislative
enactment, if they are to be enacted at all.
In other cases, the authority of the Department to interpret the statute
to clarify its meaning has not been fulfilled
Some
of the changes may produce unanticipated consequences that make enforcement
more difficult. By creating broad new
definitions, the regulations may cover groups that the Department does not
intend to include in its enforcement efforts.
However, if the regulations are not enforced uniformly with respect to
those establishments covered by the plain meaning of the new language, the
regulations are open to attack from the very groups the Department hopes to add
to the coverage (see, e.g., Regulatory Analysis Form Answer to Question
14).
At
the same time the Department is creating new definitions, it has ignored areas
where neither the current regulatory scheme nor the statute provides
clarity. Another function of the statutory
purposes of regulations (“to carry out
the provisions and intent of this act.'' 3 P. S. § 459-902), is
to make clear what is regulated and how it is regulated. In significant instances the current and
proposed regulations fail to do that.
Let
us provide a few examples of how the regulations are unclear. The 26-dog cumulative threshold for licensure
is part of the existing statute. The Department has interpreted the
cumulative total to exclude some dogs on the premises. That is, in determining whether a kennel
license is required for an establishment, dogs that stop by during the day,
dogs that accompany their owners overnight, and dogs that stay overnight
without a fee are not counted in the cumulative total. In addition, a dog is counted only once
towards the cumulative total regardless of how many times the dog returns
during the course of the year. If this
is so, why is this not stated explicitly in the regulations to explain and
clarify the meaning for kennel inspectors and the regulated community? There has been considerable confusion about
this issue and the regulations are the place to clarify them.
The
rules on licensure differ for a boarding kennel (defined by statute as
“available to the general public” and “for compensation,” 3 P.S. § 459-102), which are classified on the capacity of the
facility, and other classes of kennels (i.e., private kennels, pet-shop
kennels, research kennels, dealer kennels or breeding kennels), which are
classified on the cumulative number of dogs housed in any year. Most people cannot operate boarding
kennels in their homes because of local zoning regulations, so compensation is
not a factor for them. If they bring the
cumulative total number of dogs to the 26 dog threshold for licensure, a
license would be required. The
Department is empowered to interpret the statute and if those dogs are to be
excluded, the regulations should so state.
The
definitions of kennels and the 26-dog threshold have been in the statute since
1996. When the kennel inspector comes,
he counts the dogs in the kennel and counts the dogs that are listed on the
required form as being present to see that they match. Each visit of the dog must be separately
reported on the Kennel Record. What is
someone to do if a dog that is there is not to be counted towards the total? It seems the choices are: 1) explain to the
kennel inspector the dog is excluded from the total and shouldn’t be counted,
although listed on the form or 2) don’t enter the dog on the form since it is
not counted in the cumulative total and explain why it isn’t listed. There is no way for the inspector to verify
the information to be sure the statement is true and to know that the
information is reported accurately or recorded accurately on the form. That causes enforcement problems. The fact that the regulated community, and
possibly some dog wardens, do not understand some dogs are not counted in the
cumulative total, suggests that its meaning should be addressed in the draft
regulations.
Licensing groups which are not, but
should be, covered by the regulations is a desirable goal. It will improve the health of animals and
provide better oversight. However, throughout
these proposals, the Department applies a broad brush of identical regulation
to establishments created for different purposes, housing different numbers of
dogs, and housing them in vastly different types of facilities. In trying to apply one set of standards to all
facilities covered under the regulations, the Department ignores significant
issues created by bringing new groups under the regulations in the definition of establishment.
The structural issues existing when a person’s home is
used as a temporary housing facility differ significantly from those where a
separate kennel facility, either indoor or outdoor, exists. Uniformity of standards is good when applied
to similar types of facilities. But it
creates unnecessary paperwork and creates misunderstanding when uniformly
applied across situations which are in no way physically comparable. Although it would more difficult to craft
regulations to address these differences, to do so might provide the Department
with an opportunity to more accurately direct its enforcement resources to the
areas requiring the most attention. It
would be well worth the effort.
One example might be to
clarify the relationship of the definitions of and the purposes for which
establishments, temporary homes and kennels exist. An establishment is defined as the “premises including the home, homestead, place
of business or operation of any individual or person .
. . which includes all of the land, property,
housing facilities or any combination thereof, on, in or through which any dog
is kept, bred, harbored, boarded, sheltered, maintained, sold, given away,
exchanged or in any way transferred. Establishment shall encompass all of the
individuals or persons residing thereon. It may be public or private and
includes an individual, person, organization, business or operation, which
utilizes offsite or temporary homes to keep, maintain, breed, train, harbor,
board, shelter, sell, give away, adopt, exchange, or in any way transfer dogs.” (Proposed Regulations § 21.1) The same section defines a temporary homes as
a “place, other than a licensed kennel or veterinary office, including a
personal home, land, property, premises or housing facility or any combination
thereof where an individual, person, owner or keeper, keeps, maintains, breeds,
harbors, boards or shelters dogs on behalf of another person, organization,
business or operation for the purpose of later selling, giving away, adopting,
exchanging or transferring the dogs.”
These contrast with the statutory definition of kennel as “Any establishment wherein dogs are kept
for the purpose of breeding, hunting, training, renting, research or
vivisection, buying, boarding, sale, show or any other similar purpose and is
so constructed that dogs cannot stray therefrom.” (3 P.S. § 459-102.)
In
order to be a kennel under the statute, you must first be an establishment
where the listed purposes are met and which is so constructed that dogs cannot escape. However, kennels are not licensed,
establishments are. The original purpose
of kennel licenses was to provide a way to license dogs as a group, rather than
to license them individually. It is
possible to be a licensed establishment without having a kennel facility. If you
are an establishment and have 26 or more dogs cumulatively housed there each
year, a kennel license is required. Clearly,
a person who keeps 26 dogs cumulatively in their house as pets and did not
breed them or engage in any of the other purposes defined for a kennel would
not be classified as such, although they would need a license as an
establishment. Thus, the Department is
placed in the anomalous position of requiring hoarders to obtain kennel
licenses.
The definition of establishment under the proposed
regulations appears to significantly expand the plain meaning in the
statute. Again, it is easy to understand
that defining this term more completely than it is in the statute is necessary
to permit the Department to enforce the statute with respect to individuals who
may attempt to avoid its grasp. But in
doing so, the regulations encompass groups and individuals with respect to whom
the Department clearly has no interest in including in its enforcement plans.
Unfortunately, in its attempt to provide measurable
standards for appropriate treatment of animals, the regulations require their
application to some settings for which they are inappropriate, for which no
clear basis is presented and which do not pass the test of real world
applicability. Furthermore, some of the
proposed regulations appear to go beyond merely carrying out of the provisions
and intent of the act. There are
internal inconsistencies and a lack of clarifying statements that make the
rules difficult to understand by the layperson that has to abide by them. Some of the opposition to this portion of the
regulations is derived from this misunderstanding, not from any disagreement
with the intent of the regulations to control better large, commercial kennels.
The
statute states that kennels are “so
constructed that dogs cannot stray therefrom.” (3
P.S. § 459-102.) It appears from
the statutory definition that there is something related to its construction
required for an establishment to be a kennel.
However, the statute and regulations are silent on the meaning of that
phrase. Nowhere is there a clear
statement of what differentiates a house from a kennel, requiring adherence to the
full panoply of kennel regulations. Does
the purpose of the construction have to be that dogs cannot stray
therefrom? Must the building have been
constructed to contain dogs or, at least, animals? Is it that there must be a fence around the
building or property? Does that mean
that an unfenced house is not a kennel, while a fenced one might be? If it is unfenced, but has a doggy door
permitting egress is it no longer a kennel?
The statute is not clear and the regulations should clarify the issue.
The Department correctly does not intend to enforce the
regulations against a hotel or motel that permits owners to keep their dogs in
their rooms. Nor do they contemplate
enforcement against cooperative housing or condominium developments. However, the new language appears to include
these groups within the definition of establishment in that the premises
include the “place of business or
operation of any individual or person
. . .
which includes all of the land, property, housing facilities or any
combination thereof, on, in or through which any dog is kept, bred, harbored,
boarded, sheltered, maintained . .
. .” Proposed Regulations §
21.1.
Hotels, motels and
campgrounds that permit individuals to place their dogs on their premises
overnight fall within the definition of establishment since the dogs are, at a
minimum, “kept” there. Therefore, if
they keep more than 26 dogs cumulatively annually, the regulations as written would
require they be licensed.
Hotels and motels that charge an
additional fee per room or per dog for permitting the dogs to be kept in the
rooms would be classified as boarding kennels under the regulations once they
meet the definition of establishment. If
dog owners go to such establishments to show their dogs in local conformation,
obedience, or tracking shows, to breed their dogs to a local dog, to go
hunting, or to deliver a dog for sale to someone local, dogs there for those
purposes would meet the criteria to classify the establishments as
kennels. At the least, the hotels would
have to require prospective guests with pets to let them know the purpose of
the pet being there so they could determine whether the keeping or harboring of
the pets fell within the regulations.
On their face, the breadth of the
definitions in the new regulations creates the requirement for their
licensure. The Department is aware of the recent experience of
Similarly, since the cooperative housing corporation is
the owner of the property, with those residing therein merely shareholders, if
more than 26 dogs are housed therein, it is an establishment under the
definitions and requires a kennel license.
The same applies to condominiums, since the individual housing
facilities, although not owned by the condominium, are part of the “of the land, property, housing facilities
or any combination thereof, on, in or through which any dog is kept, bred, harbored,
boarded, sheltered, maintained . .
. .” This is another area that should specifically
be excluded.
It is not appropriate for the
Department to argue that they haven’t regulated these groups in the past, do
not intend to do so, and will not do so in the future. In the past, there was no specific definition
of establishment in the statute or regulations.
By creating the definition as worded, the regulations themselves raise
this issue. Proper drafting of statutes
and regulations requires that they be drawn broadly enough to encompass all groups
they are intended to cover, but narrowly enough to avoid snaring within their
grasp those groups with respect to which enforcement is not contemplated. The Department should not state that it wants
to clarify the regulations and at the same time make them make them vaguer. The better course of action would be to
rewrite the proposed regulations so they more clearly defined the
establishments within their scope.
It is clear from its representatives that the Department
does not intend to apply the standards in the regulations to dogs kept in
buildings in which people reside (e.g., homes, hotels, motels or
campgrounds). If it is not, they should
be exempted specifically from having to adhere to those standards, most especially
with respect to construction-related items not suitable for a residential
environment. It is possible for the
regulations to make clear that if the purpose of the construction was to house
people, and if people actually resided therein, the incidental use of the
premises to house dogs would not make it a kennel for the purposes of complying
with the structural and maintenance parts of the regulations.
One
way to do this is to refine the definition of the term cumulative total. Section 21.1 could be further amended to
include a definition of cumulative total.
We believe the following is one way to accurately present the
Department’s policy. “Cumulative Total - the total number of dogs kept, bred,
harbored, boarded, sheltered, maintained, sold, given away, exchanged or in any
way transferred by an establishment at any time during a licensing year and
owned by any individual or person residing thereon. Cumulative total shall not include a dog
temporarily housed in the same room with an owner not associated with
establishment, or a dog kept temporarily without charge. A dog shall only be counted in the cumulative
total once year calendar year regardless of the number of times it enters and
leaves the establishment.” This is
only one possible example of wording that could clarify the meaning and clearly
exclude groups the Department does not believe should be regulated..
Similarly, the Department should not have any objections
to puppies being whelped and raised in a residential setting, even though the
houses do not conform to kennel standards.
People who raise puppies in their houses take great care to keep the
space clean, sanitary and as odorless as possible. The situation provides puppies that are
better socialized and more fit to live with a family than a puppy that is
raised solely in a kennel and has exercise for 20 minutes per day. Furthermore, some breeds require significant
attention during the first week of their lives and having them raised in a
residence is the best practice to ensure the health and proper development of
the dam and the puppies.
COST ESTIMATES
The cost estimates cited in the Regulatory Analysis Form
have ignored significant costs to the government, to the regulated community
and to the public.
I do not know the extent to which the Commonwealth and
local governments use dogs in enforcement of laws, the number of such dogs, or
whether some other statute exempts kennels maintained for law enforcement dogs
(bomb dogs, drug dogs, etc.) at the Commonwealth and local level from adhering
to the kennel (as opposed to licensure) provisions. However, the Department of Agriculture Web
site lists 27 currently licensed police-related kennels. Given the definition of establishment, the
plain language of the regulations referring to training as a purpose for
kennels, and the fact that they are licensed currently suggests that these
facilities come under their purview. Some
of these facilities keep dogs pending disposition, which may include
transferring the dog. Dog kennels
maintained by Commonwealth and local governments may not meet the standards of
the new regulations. Surely the
regulations do not intend that the Commonwealth and local governments not meet
the stringent standards set forth for everyone else. If this reading of the new regulations is
correct, these costs need to be accounted for or the regulations need to be
clarified.
The Department states that there will be no increase in
paperwork requirements. Generally,
governments assess the cost and time to the public as well as the governmental
entity when evaluating paperwork requirements.
This is specifically one factor considered by IRRC in assessing the
economic and fiscal impact of proposed regulations. The Department appears to have neglected the
fact that all kennels will have significant additional paperwork requirements
deriving from these regulations. The
Department implicitly has recognized this when it states that the on-going cost of
$5,000 per year per inspector for inspections and review of recordkeeping
requirements. Although inspectors may
not be creating new records, they are responsible for reviewing records
maintained by the kennels and validating their accuracy. The annual cost of this review to the
Commonwealth is included in the on-going cost of $265,000 annually for program
enforcement. It is not possible from the
documents to be sure that this cost is inclusive of the additional time, and
possibly the additional staff, needed to review the voluminous records mandated
by the new regulations. Therefore, there
is no way of knowing if this figure cited is accurate or too low.
Furthermore, the Department’s figures do not anticipate
the need to hire additional kennel inspectors to enforce its more stringent
regulations against what it estimates is a larger number of kennels than are
now licensed. If the regulations bring
unlicensed kennels that require licensure under its inspection program,
additional staff will be needed for inspection.
How it intends to increase enforcement without hiring additional kennel
inspectors and raising the estimated costs to the Commonwealth is unclear from
its submission.
The collective cost to all kennel owners is estimated to
be at least $5,000 annually and as much as $20,000 annually in the Regulatory
Analysis Form (Answer to Question 20).
Since there are about 2,400 licensed kennels currently in existence, the
Department is estimating a minimum average annual cost of slightly less than $2.10
per kennel per year, and a maximum annual cost of less than $8.50 per kennel
per year, which it says is based on estimates from the regulated
community. I do not know who within the
community estimated these figures, but they are low by several orders of
magnitude.
We are aware of one kennel that was already was built
when the new owner purchased the property.
It was constructed from blueprints for a commercial kennel and meets the
proposed standards inside the kennel, but the outdoor runs only consisted of a
dirt base. The new owner had concrete runs installed. They were sloped away from the kennel to
permit adequate drainage and a drain system was put into place to carry off
rainwater or water used for washing the runs.
The construction cost was about $8,000 for one Class I kennel, or between
160% of the minimum to 40% of the maximum total annual outlay projected as the
cost for all 2,400 licensed kennels.
This did not require any structure changes to the kennel building
itself.
Mandating construction to remove from kennels dangerous
conditions that might lead to disease is a desirable and necessary goal. However, the estimate of costs should be more
realistic to permit a better analysis of the cost of the regulations to the
regulated community.
Some of the other statements on the fiscal impact of the
regulations are difficult to accept on face value. For example, the Regulatory Analysis Form
(Answer to Question 20) and the preamble to the regulations estimate that there
will be no cost or fiscal impact to the general public from the proposed
regulations. (36 Pa.B. 7599) It appears
the Department believes that commercial boarding kennels will not pass these
increased costs on to the owners of the dogs boarding with them and that
breeders (large or small) will just absorb these costs without increasing the
cost of dogs sold. Most economists would
disagree with this premise.
Similarly, an unanticipated consequence of the proposed
regulations may well be a reduction in the number of small, craftsman breeders
and exhibitors who are unable or unwilling to raise dogs in the restrictive
kennel environment mandated by the proposed regulations, rather than in their
homes. The loss of these breeders will
reduce the supply of quality puppies available in the Commonwealth, enabling
substandard kennels to raise puppy prices to the public.
The loss of these exhibitors will have a negative impact
on revenues from dog shows within the Commonwealth, reducing funds available
for governmental operations at all levels.
In 2006, there were 620 AKC events, with
173,105 entries, and 146,855 competitors in the Commonwealth. An economic benefits
research survey conducted by the AKC asked respondents how much they spent on
lodging, gas, meals and other travel expenses. Respondents attending events
reported an average expenditure of $320 per respondent or a total of $46,993,600
in revenue generated by AKC events conducted in PA, in addition to the monies
received by local clubs and show sites for holding the shows. Dog shows are a significant income
producer for the economic health of the public.
The multiplier effect of a reduction in expenditures will impact all
public funding sources.
The Department itself recognizes only minimal costs to
the private sector for establishments utilizing temporary homes. While
it is true that the temporary homes will have additional requirements, this
statement ignores the costs to kennels of the other instances of new mandated
recordkeeping. Given the increase in the
amount and type of data that the rules require, larger kennels may have to hire
additional personnel and smaller, single or family owned kennels may be
overwhelmed. While this cost increase
will be a marginal economic factor for the large puppy factories, it will be a
major new cost for the craftsman kennels.
Furthermore, each temporary home will be required to have a separate
kennel license under the regulations as written. This will be a major cost factor for rescue
organizations.
COMPARABLE STANDARDS
Many of the proposed regulations, and specifically the
new standards for kennels, are derived from the Animal Welfare Act (7 U.S.C. §§ 2131 et.
seq) and its Regulations (9 C.F.R. 1.1 et
seq.), which were designed to apply to facilities engaged in wholesale
interstate commerce, not to the types of situations found in small, craftsman
kennels. Despite the fact that federal
regulations are frequently taken verbatim in the proposed revisions, there are
significant areas in which the proposed regulations ignore more reasonable
federal guidelines. This is, in
significant part, related to the Department’s approach of trying to establish a
single set of regulations applicable to all kennels, rather than targeting
regulations on a more specific basis.
The AWA serves as the minimum standard for those kennels included
within that law. States are permitted to
institute more stringent regulations over that class of kennels when they deem
necessary. The Commonwealth is free to regulate
other kennels more or less strictly, as it deems necessary. Different circumstances may suggest different
standards. By not tailoring the
regulations to the type of kennel, the Department seeks to implement the most
stringent regulations with respect to all kennels, rather than targeting those
area most in need of attention.
It is unclear from the Regulatory Analysis Form (Answer
to Question 21) or the proposed regulations themselves, why the Department
believes that more stringent regulations, rather than better defined
regulations coupled with significant enforcement initiatives, would not achieve
the desired results. Stringent does not
necessarily mean better or clearer and does not guarantee they are attainable,
even by a conscientious establishment.
Proposing unattainable regulations is the best way to make sure they are
challenged.
The federal regulations also provide existing operations
with a reasonable time period to come into compliance with the new regulations,
something that is strikingly lacking in the proposed Department regulations (see e.g., 9 C.F.R. 3.6(a)(2)(xii)). It was a relief to a see statement in the
Regulatory Analysis Form response (Answer to Question 30) that the Department
intends to phase in the effective date of the regulations for existing kennels
and to permit kennels which need to be licensed a reasonable time to obtain
such licenses.
Some of the physical changes to kennel facilities, e.g.,
construction of outdoor runs for both indoor housing facilities and outdoor
housing facilities, can be accomplished without changes to the structure of the
building. However, there may still be an
impact in cases where the local zoning board does not approve permits for
changes mandated under the new regulations.
A grandfather clause is usually included in building codes exempting
such buildings from compliance with new regulations until permits are required
for other structural changes in the building.
Changes to bring the building up to the new code are usually required
only at that time. To do otherwise would
place an unreasonable burden on the building owner. A similar practice exists in zoning
regulations which generally permit the continued existence of a preexisting
nonconforming use, while prohibiting new construction of similar types of
facilities.
The Department has the authority to treat different
kennel types with different rules.
Although not an absolute criterion, the craftsman kennels are usually
found in residentially zoned areas, while the puppy factories are on large
tracts of agricultural land. Regulations
could be written to apply appropriate standards to both types of kennels based
on the zoning and capacity of the establishment. For example, class I private
kennels (the group that potentially will suffer the most under the proposed
regulations and not a group targeted by the Department for increased
enforcement) could be grandfathered under the existing regulations or portions
thereof. This would enable the
Department to target better its enforcement resources to those areas most in
need.
Some jurisdictions define
kennels more specifically than do either the current or proposed
regulations. For example,, the
The Department could use a similar
approach to defining the term private kennel (which is undefined both in the
statute or regulations). For example, it
is within the Department’s authority to define a fancier’s kennel as a Class I
Private kennel under §
459-206 of the statute. The regulations
could further state that the construction and maintenance requirements of the
proposed regulations do not apply to Class I private, breeding or show kennels
if the dogs are kept in the home of the person operating the establishment. This would still permit the application of
the definitions to the other establishments, especially those constructed with
the intention of housing animals. This
is merely an example, not a well defined alternative. There are many such alternate approaches that
would yield similar outcomes. Where,
exactly, the regulatory line should be drawn is a matter of debate; however, it
should be clear that there is a need to define such a line.
Although instructive, neither the
Animal Welfare Act nor the Military Dog Training Manual is a suitable guide for
regulating private, craftsman kennels.
At times the requirements of the two information sources may be diametrically
opposed to the requirements of the proposed regulations. For example, The Military Working Dog Program, unlike the
proposed regulations, mandates that the sanitary inspection of kennel
facilities, the establishment of plans for kennel buildings and the
establishment of an adequate feeding program be performed by veterinarians. Department of
the Army Pamphlet 190-12, page 61. This
differs greatly from the restrictive and voluminous proposals specifying
methods of goal attainment contained in the proposals.
Our belief is that the purposes and intent of the act
would be best served by regulations based on the types of kennel licenses
authorized in the statute and the purposes for which the kennels exist. The primary purpose of a kennel may be determined
by the activities that involve the majority (or a large plurality) of the dogs
housed therein. The size of the kennel
is already known based on licensure.
Some regulations will be the same across kennels, others may be varied
depending on the type and size of the kennel.
It should be clear the Class I private kennels differ so significantly
from large volume, commercial kennels that identical regulations should not be
applied to both. The Commonwealth may
have good reason to implement more stringent kennel regulations, but where and
how the regulations impact on the different classes of kennels and different
purposes of kennel operation should be more clearly and flexibly defined. This would permit the Department to focus its
resources in a more targeted manner in the areas requiring the greatest
attention, thereby improving enforcement of the provisions and the intent of
the act.
UNANTICIPATED CONSEQUENCES
As the Department properly states “ . .
. rules and
regulations [are issued by the Secretary] to carry out the provisions and
intent of this act.'' (3
P. S. § 459-902). Most laws
rely on the voluntary compliance of the public.
Without such voluntary compliance, laws and regulations will not work
(Penn’s motto is particularly appropriate in this context –Leges sine Moribus vanae). It is almost impossible outside a police
state for the government to determine accurately the validity of such reporting
of non-public activities.
The requirement for a kennel license (“A kennel license is required to keep or
operate any establishment that keeps, harbors, boards, shelters, sells, gives
away or in any way transfers a cumulative total of 26 or more dogs of any age
in any one calendar year.” 3 P.S. § 359-206(a)) presupposes voluntary reporting
of the number of dogs by the public. To
the extent that regulations create overly burdensome or onerous conditions for
those regulated, those regulated will seek to be unregulated. Although the inspectors will be able to
prosecute those who falsify records under the regulations as proposed, legally
sufficient proof of the falsification is difficult to obtain and would take
significantly more resources than are currently available and significantly
more than the regulations contemplate would be required to implement their
enforcement.
Significant numbers of hobby breeders have kennel
licenses as a matter of convenience, not necessity. They never have a cumulative annual total of
26 dogs, but have a kennel license as a more economical way of licensing their
dogs. Other hobby breeders and show
kennels have licenses because they believe that it is desirable to have an
outside evaluation of their methods and operation, even if a license is not
required. It provides further legitimacy to their operation. Some hobby breeders and dog rescue
organization will be tempted to limit the number of dogs raised or saved in
order to comply with the regulations. Any
such changes in behavior would negatively affect Commonwealth revenues in a
manner unaccounted for by the Department.
In fact, the lack of clarity in the regulations is apparent in that the
term “cumulative number of dogs” used throughout the statute for licensing requirements is
left undefined and is variously interpreted and understood within the
Commonwealth. As discussed above, this
should be defined and clarified.
The following sections comment on the specific provisions
of the proposed regulations and issues arising from the standards and language
used in the proposals.
COMMENTS BY
SECTION OF THE PROPOSED REGULATIONS
7 P.A. Code
§ 21.1 Definitions. The
department states that definitions were added or revised to provide
clarification and that the “necessity for clarification is based on issues,
comments and questions which have arisen with regard to the Department's
interpretation of various provisions of the act and the current regulations
over the past several years.”
The
Department’s interpretation of the act is given great weight in defining the
applicability of the regulations. However,
in this case the new definitions appear to grant powers to the Department that
are not within the scope of the act or to broaden powers beyond that permitted
by the act.
The
expansion of the plain meaning of establishment also applies to the language in
the proposed regulations that implicitly includes breed and other rescue
organizations within the definition (“It may be public or private and includes an
individual, person, organization, business or operation, which utilizes offsite
or temporary homes to keep, maintain, breed, train, harbor, board, shelter,
sell, give away, adopt, exchange, or in any way transfer dogs.” Proposed Regulations § 21.1). The language referring to giving away or
adopting animals tracks the section of the statute which describes the classes
of kennel licenses (3 P.S. § 359-206(a)), but
is not in the definition of the term kennel.
The
terms “kennel” and “establishment” are used throughout the proposed regulations
in a manner that changes the meaning as presented in the statute and confuses
the distinction between the terms. There is a fundamental lack of clarity between the
use of the term kennel in the statute and the term establishment as used in the
proposed regulations.
There is no doubt that the
Department must be able to evaluate and inspect dogs throughout the
Commonwealth to ascertain the conditions under which they live and the care and
treatment they are given. However, the
statutory language “wherein dogs are kept” implies a physical structure created
for the purposes listed. By including
temporary homes (“A place, other than a
licensed kennel or veterinary office, including a personal home, land,
property, premises or housing facility or any combination thereof where an
individual, person, owner or keeper, keeps, maintains, breeds, harbors, boards
or shelters dogs on behalf of another person, organization, business or
operation for the purpose of later selling, giving away, adopting, exchanging
or transferring the dogs.” Proposed
regulations § 21.1), the regulation takes a group of people with a common
purpose and treats their private residences as part of an establishment and, by
extension, makes them into a kennel.
The phrase “or other
similar purpose” as used in the definition of kennel makes unclear whether the
homes, or portions thereof, fall within the definition of kennel since the
homes are now part of an
establishment. The regulations need to
interpret and clarify the “so constructed” language in the statute, or the
language needs to be clarified by the legislature, so that it is clear that
homes are not held to the all the construction standards of a “kennel,” despite
possibly keeping dogs for the purposes listed in the statute. A
family whose dogs are in their home and who have one or two females of a breed
that has large litters, may be required to have a kennel license, but not have
or need a kennel.
The
concern is that private homes will be required to meet all kennel
standards. Private homes are not
constructed for the purposes listed and, therefore, should not fall with the
definition of kennel with respect to adhering to the full range of kennel
regulations. To require that a person’s
home have impermeable floors, walls and ceilings, to have drains in the floors,
and to remove carpeting because it may harbor contaminants, is ludicrous on its
face.
This
appears more to be an attempt to remove pets from people’s houses than to
improve the health and safety of the dogs.
By clarifying the exemption of this type of housing from the full scope
of the regulations, you would allay the concerns of many owners of small,
private kennels that they will be required to adapt their houses to meet the
kennel regulations.
Individuals
who keep their dogs in their homes for their own purposes should clearly be
exempt from having to rebuild their homes to kennel standards. Those whose
homes are temporary refuges for rescue under affiliation with national or local
breed organizations and are established as non-profit organizations under the tax
code also should not be made to turn their abodes into full fledged kennels,
although they should be tracked and licensed.
Bona fide breed rescue groups
perform a public good for the welfare of animals and their homes do not become
kennels, except for licensing purposes, merely by joining together with others for
a common end. Furthermore, they reduce
costs to the Commonwealth, taking in dogs that would otherwise be housed in
shelters able to collect funds under the statute (3 P.S. §459-1002).
Finally, although
an establishment may be broadly defined as a residence or business with its
possessions and staff, it appears that the use in the statute is significantly
more limited than that. Under the
statute, dog wardens and others have the right to inspect kennels and dogs and
to enter into the premises of a person for an inspection (3 P.S. § 359-218). It is illegal to refuse dog wardens
admittance to do an inspection or enforce the statute’s provisions. The Secretary is permitted to enforce the act
by “all proper means” and for
purposes of investigation “[a] dog warden or employee of the department may enter into a
home or other building only with the permission of the occupant or with a duly
issued search warrant.” (3 P.S. § 459-901). It does not appear that the
statute contemplates dog wardens entering homes without permission or a
warrant. The proposed regulations, by
broadening the scope of the term “establishment” and by defining a “temporary
home” as it does, appears to authorize entry into a person’s home without either
permission or a warrant. This not only
violates the express terms of the statute, but may present the Commonwealth
with some Constitutional difficulties under the Fourth Amendment to the U.S.
Constitution. Warrants are obtainable in
cases where needed. The regulations
cannot and should not change that requirement.
The
regulations are also unclear as to whether the authority of the Department
extends to temporary homes in other jurisdictions that are used by a licensed
kennel in
7 P.A. Code
§ 21.4 Penalties. Language has
been added: with regard to the penalties associated with failure to license
when required; to clarify the powers, duties and enforcement options when
kennels are operated before a license is obtained; and to clarify the
revocation, suspension and denial language and the seizure provisions of the
regulations.
The
revisions under this section are generally useful, clear and reasonable in
their approach.
However
under subparagraph (1)(iii), the proposed regulations list penalties for “[f]ailure
to obtain a kennel license prior to operating any establishment that keeps,
harbors, boards, shelters, sells, gives away or in any way transfers a
cumulative total of 26 or more dogs of any age in any 1 calendar year . . .” The
problem with this formulation is that it is in conflict with subparagraph
21.14(a)(3)(i) which states that: “[u]pon reaching the cumulative total of 26
or more dogs of any age in any 1 calendar year, the establishment in question
shall be required to apply for and obtain a kennel license.” The proposed regulations require obtaining a
kennel license prior to operating an establishment reaching the size required
for licensure, but permits applying for a license once the cumulative total of
26 dogs is reached. The language of the
proposed regulation states on its face that they may be liable for penalties
covering a period when a license clearly was not required under the statute or
the proposed regulations. It is
unreasonable under the circumstances to require anyone keeping a dog to be
prescient in cases which skirt the border of requiring a license and hold them
responsible for operating an establishment when licensure was not required.
Furthermore, subparagraph (1)(iii) also states that it is
“unlawful for a kennel to operate without
first obtaining a license.” The
meaning of this statement is ambiguous.
Kennels are not licensed under the statute. There is nothing in the statute or regulations
that require a license for a kennel.
Licenses are granted to establishments that fall within the criteria for
licensure whether or not they have a kennel facility. This interpretation is bolstered by the
Department’s own proposed definition of establishment which includes temporary
homes that clearly may not meet the
criteria for kennels. This apparent
confusion is generated by the breadth of the Department’s proposed definition
for establishment, since kennel is defined in the statute as being an
establishment keeping dogs for specified purposes and constructed so they
cannot escape therefrom. By broadening
the definition as it proposes, it appears the Department may be extending the
term kennel well beyond its statutory basis.
This
section also needs to specify its implied statement that the penalties of the
section do not apply when a kennel license renewal, which has been properly and
timely applied for, is not received in a timely manner. Since kennel licenses lapse at the end of the
year, an individual would have no proof of current licensure even if assured by
the local office that it had been mailed.
The statute places the burden on the owner of the dog to prove it is
licensed. (3 P.S. § 459-802) We
are aware of cases where license renewals weren’t received before January 24,
2007. Should an inspector come to such
an establishment before the license was received, there would be no proof that
the establishment or the dogs were currently licensed. Even though the penalties in this section are
not mandatory, it would be better to clarify this issue.
The
requirements of (1)(iv) regarding convictions for animal cruelty with the past
10 years should be strengthened to include convictions for animal cruelty
outside the Commonwealth. The current
language does not prevent animal abusers from moving into the Commonwealth and
being licensed here. The Commonwealth
should not grant licenses to convicted animal abusers who were convicted
anywhere within the regulatory time period.
7
P.A. Code § 21.14 Kennel Licensure Provisions. This section gives more specifics with
regard to the intent and enforcement of the kennel licensure provisions of the
act and sets forth the substantive provisions of the regulations relating to
the new definitions of ''establishment'' and ''temporary home'' set forth in
these regulations. It addresses and sets
forth the prohibitions related to dealing with unlicensed kennels. It is intended to provide clarification
related to Article II provisions of the act and to assure greater compliance
with the existing provisions of the act to enhance the Department's ability to
carry out the intent of the act which is protection of the health, safety and
welfare of dogs.
The
requirement of Subparagraph (a)(3)(ii)
of the Proposed Regulations that each “temporary home utilized by the
establishment shall be treated as a separate kennel location” and the requirement of paragraph (a)(2)
that a “separate and proper kennel license shall be required for each type of
kennel and every location at which a kennel is kept or operated” creates a definitional problem. First, statute requires the licensure of
establishments, not kennels. It is the broad definition of establishment under
the proposed regulations that creates this situation. The Department’s
definition requires a license for each temporary home since they are kennels by
extension as part of the establishment requiring a license. This circular reasoning should be
eliminated. Dual licensure is not
necessary, especially since the regulations require the establishment to
provide tags for the dogs in the temporary homes.
Second, it is arguable whether rehoming an abandoned dog falls within
the catch-all phrase “or other similar
purpose” in the statutory definition
of kennel. The problem with this formulation is twofold. The purpose of rescuing, socializing and
rehoming dogs varies from the purpose of a kennel as defined in P. S. § 359-101, unless included under the catch-all
phrase therein. However, temporary
homes are defined so broadly that many may not meet the requirement of the same
section mandating that kennels be constructed so that dogs are unable to stray
therefrom. The Department appears to
mean that each temporary home is part of the same establishment. That, however, does not make the location a
“kennel,” to which other sections of the statute and regulations specifically
apply. The same concerns discussed regarding
the language under Section 21.4 above applies to the repetition in this section
of the requirement that kennels be licensed prior to meeting the standard for
licensure.
Subparagraph (a)(3)(iii) further states
that such a “temporary home that keeps,
harbors, boards, shelters, sells, gives away or in any way transfers a
cumulative total of 26 or more dogs of any age in any 1 calendar year becomes a
kennel and shall meet the kennel licensure requirements of the act and this
chapter. It appears the Department
means to say they become a separate establishment needing an individual kennel
license. If the proposed definitions are
to be taken at face value, temporary homes are required to be a separately
licensed establishment in all cases.
This is illogical. If they do not
meet the requirement of being an establishment requiring licensure by
themselves, they should not require separate licensure and be defined as
kennels solely because they are defined as part of another establishment under
the proposed regulations.
Licenses are required for establishments based on number of animals and
purposes for which the animals are kept.
The standards for operation of a kennel are discussed elsewhere. However, the standard for the size of the
kennel required in subparagraph (a)(3)(i) is arbitrary, capricious and an abuse
of authority in that it bears no relation to the actual housing needs for the
health and safety of the dogs. The
standard established is that “[t]he establishment shall have kennel facilities
that meet the regulatory requirements for all of the dogs currently on the
premises or to be kept, harbored, boarded, sheltered, sold, given away or in
any way transferred by the establishment, which ever number is larger.” Thus,
if a kennel has 20 dogs in permanent residence and has, over the course of a
year another 30 “ins and outs” (including puppies) the kennel would to be sized
for 50 dogs. This cannot be the
intention of the Department.
We believe what is meant is that “[t]he
establishment shall have kennel facilities that meet the regulatory
requirements for all of the dogs currently on the premises or the maximum
number to be contemporaneously kept, harbored, boarded, or sheltered, which
ever number is larger.” If this is
correct, it should say so.
This wording also requires that establishments that
utilize temporary homes, including breed rescue groups, must have kennel
facilities meeting the proposed standards even if they do not have or need a
kennel to function. If a group places 30
dogs over the course of a year in 30 different homes, why are they mandated to
maintain a kennel facility meeting the requirement of the proposed regulations? Similarly, why does a dog trainer who trains
one dog every two weeks for a cumulative total of 26 dogs need to build and
maintain a kennel when one is not needed?
Establishments that use temporary homes are classified as boarding kennels or non-profit kennels. § 21.14 (a)(3)(ii). However, breed rescue organizations clearly do not meet the statutory definition of non-profit kennel in the statute. “Any kennel operated by an animal rescue league, a humane society or association for the prevention of cruelty to animals or a nonprofit animal control kennel under sections 901 and 1002.” 3 P. S. § 459-102. All these organizations may enforce the humane laws; breed rescue may not. They also do not meet the statutory definition of boarding kennels since the dogs kept therein are not kept for a fee and the establishment is not open to the general public for boarding. In fact, although these may be establishments, it is only by a great stretch of the wording of the “any other similar purpose” phrase in the definition, and ignoring the “so constructed” language that they can be considered kennels at all. It appears that they do not fit within the purposes for kennels.
With respect to the requirements of subsection (b), does the Department intend to publish a list of individuals who should have kennel licenses but do not? If not, how is the kennel owner supposed to know that an individual falls into that category so as to abide by section (b)? If the Department with all its resources is unable to find this out, how can the individual? The more appropriate standard would be that the action is done with knowledge that a license is required and knowledge that it does not exist. Although this is harder to prove, it would better withstand legal challenge.
In accordance
with section 214 of the act (3 P. S. § 459-214), it shall be unlawful
to transport any dog into this Commonwealth, except dogs temporarily in this
Commonwealth as defined in section 212 of the act (3 P. S.
§ 459-212), without a certificate of health prepared by a licensed doctor
of veterinary medicine. All other
dogs entering the Commonwealth from another state, commonwealth or country
shall have a health certificate stating that the following conditions have been
met:
(1) The dog
is at least 7 weeks of age.
(2) The dog
shows no signs or symptoms of infectious or communicable disease.
(3) The dog
did not originate within an area under quarantine for rabies.
(4) After
reasonable investigation, the dog has not been exposed to rabies within 100
days of importation.
(5) The dog
has been vaccinated for rabies in accordance with the Rabies Prevention and
Control in Domestic Animals and Wildlife Act (3 P. S.
§§ 455.1--455.12). The health certificate must show the vaccine
manufacturer, the date of administration of the rabies vaccine and the rabies
tag number.
7 P.A. Code
§ 21.15 Exemptions. Dog control
facilities that are authorized to receive grants under section 1002 of the act
(3 P. S. § 459-1002(a)) would be exempt from the new quarantine and
space provisions of the regulations. The Department accepts that these
facilities perform a government service by taking stray and abandoned dogs from
the Department and the general public. In addition, they accept and hold dogs
seized from licensed and unlicensed kennels. Subjecting them to the quarantine
and double space requirements of these proposed regulations would limit the
space available to provide those services and limit the ability of these
facilities to adopt such dogs.
As a
former Executive Director of Animal Care and Control in New York City, the
writer understands well the policy reasons for the exemption provided to “dog control facilities authorized to
receive grants under section 1002 of the act (3 P. S.
§ 459-1002(a)) . .
. from the new quarantine and
space provisions of the regulations.”
Since the number of dogs coming into the facility is not under the
control of the facility, there are times when the minimum space standards and
strict quarantine cannot be maintained.
However, the logic of the Department demonstrates the validity of exempting
breed rescue organization in a similar manner and for the same reasons: “[t]hese facilities perform a government
service by taking stray and abandoned dogs from . . .
the general public. . . . .
Subjecting them to the quarantine and double space requirements of these
proposed regulations would limit the space available to provide those services
and limit the ability of these facilities to adopt such dogs.”
Although
breed rescue organizations may not be able to accept funds under the statute
and do not receive dogs directly from a seizure, in a number of well publicized
cases within the Commonwealth, they have housed and rehomed dogs originally
taken in by such dog control facilities when they were overwhelmed and breed
rescue groups perform the same governmental service regarding stray and
abandoned dogs as do facilities that may accept such funds. They also do this at no cost to the
Commonwealth. The same policy reasons
favoring exemption should apply to them.
Even though apparently not recognized by the Department, they are an
integral part of the system used to relieve the Commonwealth of the burden of
these dogs. Surely at a minimum, a
similar exemption could be included for non-profit rescue groups formed under
the provisions of Section 501(c)(3) of the Internal Revenue Code and affiliated
with a national or local breed club and they should be permitted to receive
pure-bred dogs of their breed directly from a seizure.
Of
course, it is somewhat ironic that the solution to solving the problem of dogs
seized from kennels which do not provide a healthy environment is to place them
in facilities which may have substandard space and inadequate quarantine
procedures.
7 P.A. Code
§§ 21.1 – 21.29 Generally
This
comment applies to all of the above listed sections. People’s homes and Class I private kennels
should have a separate set of regulations applied to them that acknowledge there
is a significant difference between these establishments and commercial kennel
operations. The nature and reach of
these differences should be developed based on discussions between the
Department and representatives of that segment of the regulated community. The goal should be reaching a mutually
acceptable set of regulations that will ensure the health and well-being of the
dogs kept by that group without imposing onerous burdens that might eliminate
this segment from meaningful participation in dog fancy. If that were accomplished, along with
clarification of some existing terms used in the statute and regulations, many
of the concerns of dog fanciers including those engaged in conformation and
performance events, would be addressed.
7 P.A. Code
§ 21.21 Dog Quarters. Language
added to this section clarifies the overall sanitation and housing requirements
of the regulations and to addresses the amendments to later sections of the
regulation related to sanitation and housing of dogs.
Subsections
(a), (b) and (c) appear reasonable. The
terms of subsections (d) and (e) appear to be inconsistent. It is not clear how an enclosure can be
stacked and still permit unfettered clearance out of the enclosure without
presenting a threat to the safety of the dog.
In fact, it is better for the dogs and the maintenance of the facility
if the enclosures are not stacked at all.
Perhaps this could be clarified.
7 P.A. Code § 21.22 Housing. Changes to this section address problems and issues that have arisen with regard to dogs, both puppies and adults, being brought into a kennel from another kennel or establishment. The new language sets forth health requirements, such as an isolation time period for the dogs, and thereby addresses health problems related to new or varied strains of virus and bacteria being brought into the kennel or new or existing parasites the may accompany puppies or adult dogs not born at the particular establishment.
The provisions of subsections (a), (b), and (c) improve existing regulations and the removal of the language requiring separation of dogs by sex except for certain reasons makes sense. However, the language and distinctions made in paragraphs (d) and (e) are troublesome. Puppies are puppies until 12 months old and then they become adults. Restricting access of any dog to others in the kennel when they show signs of disease or when there is no record of health care makes sense. What does not, is taking away from the treating veterinarian the ability to make that determination regarding the health of the puppy or dog and the amount of time required for separation for health reasons. If the Department cannot accept the opinion of licensed veterinarians regarding the health and treatment of animals within the Commonwealth, the problem will not be solved by enforcing arbitrary quarantines, regardless of the age of the animal. This approach is at variance with the approach of the Animal Welfare Act (AWA) Regulations. Dogs received directly from their breeders who raised them need only be held for a 24 hour period prior to sale. 9 C.F.R. 2.101 (a)(4). “Dogs and cats that have or are suspected of having a contagious disease must be isolated from healthy animals in the colony, as directed by the attending veterinarian.” (9 C.F.R. § 3.7(e)). The language of the proposed regulations should also specify that the release of the veterinarian should be in writing so there is a record. The proposed regulations mandate the quarantine of dogs for the longer of 14 days or the period the veterinarian thinks necessary to treat disease, to halt the spread of bacteria or viruses or to acclimate the dog to the kennel. Why the opinion of the veterinarian is not controlling is unclear. This is another example of regulations that make sense in the context bringing large numbers puppies into of a commercial breeding establishment, but make little or no sense when an individual puppy is brought into a new home or class I private kennel. 7 P.A. Code
§ 21.23 Space. New language in this section is
intended to address the health and welfare of dogs housed in kennels and make
the Department's regulations more consistent with Federal regulations set forth
under the Animal Welfare Act (7 U.S.C.A. §§ 2131--2159). The new language
addresses space requirements and sets forth the requirements of and for an
exercise program for all dogs kept in a kennel.
The
formula for the space requirement comes from the AWA. Under AWA regulations “Dogs over 12 weeks of age, except bitches with litters, housed, held,
or maintained [by those subject to the AWA] must be provided the opportunity
for exercise regularly if they are kept individually in cages, pens, or runs
that provide less than two times the required floor space for that dog, as
indicated by Sec. 3.6(c)(1) of this subpart.” 9 C.F.R. § 3.8(a). There is no argument that this is too little
space for dogs for to spend their entire lives.
Commercial puppy factories and other kennels where the dog only has
access to their primary enclosure should be required to meet new minimum
standards as the proposed regulations contemplate. However, arbitrarily doubling the minimum requirement
for class I private kennels where the dog has free access between an indoor
enclosure and an outdoor exercise area or the dog is not within the enclosure
for most of the day may not be appropriate.
Also, why not just redefine minimum, rather than stating that the
minimum is twice the minimum.
The
term primary enclosure is defined somewhat ambiguously, especially since the
regulations now cover both dogs housed indoors and dogs housed outdoors. Primary enclosure is defined as a “structure used to immediately restrict a dog
to a limited amount of space, such as a room, pen, run, cage, crate or
compartment.” § 21.1. Does it include only the indoor area in a
kennel where the dog has free access to an outdoor area? Does it include both the indoor and outdoor
area in such a situation? If the
outside area is larger than the indoor area, is the dog considered to be housed
in an outside primary enclosure with the inside area defined as the shelter
structure? We don’t ask these questions
to create problems, but to better understand the definitions under which we
will be regulated.
The
regulations additionally mandate exercise for all dogs whether housed at the
newly defined minimum or housed with other dogs. Having more space for each dog is desirable
and if the Department wants to increase that space, it should do so in a
rational manner distinguishing between puppy factories, where large numbers of
dogs are housed in substandard conditions and fancier kennels, where dogs get
individual attention and significant opportunity to be outside their primary
enclosures. Kennel inspectors also need
to be trained that temporarily housing a dog in a crate does not make it a
primary enclosure under the regulations.
We know of one professional handler who was cited because a dog that had
just come from the airport was still in an airline crate when the inspector
arrived. The crate size of an airline
crate is designed to make sure the dog does not get injured during
transportation. It is clearly not of
sufficient size to house a dog permanently.
However, it is of sufficient size to house a dog during and immediately
after transport and may be of sufficient size to temporarily house a dog while
its primary enclosure is being cleaned and sanitized.
The
standard set forth in subsection (d) for the interior height of a primary
enclosure may make sense for a commercial puppy factory where there is a top
directly over the primary enclosure’s walls.
The height is sufficient to prevent dogs from climbing or jumping out of
such a covered run, while enabling room to move freely. However, it makes no sense in a kennel
building where there are walls or fencing between primary enclosures with the
ceiling height separated from the top of the wall or fencing. In those cases, the wall must be higher to
prevent a dog from escaping from the primary enclosure. Of course the appropriate height should be
determined by the breed, height and athleticism of the animals enclosed, not
some number unrelated to real world behavior.
The provisions in subsection (e) regarding additional exercise requirements establish uniform procedures for all dogs. This makes sense in a puppy factory environment where dogs are unexercised and there is evidence of muscular degeneration or atrophy. However, the tolerance of a dog for exercise is governed not only by its health, but by its breed characteristics, its age and the weather conditions. It is dangerous to require the same amount of exercise for puppies as for adults, for long-coated or brachycephalic breeds compared to other breeds in the hot, humid weather, for short haired breeds when it is excessively cold, for any dog in extreme weather conditions (very low or very high temperatures, during hurricanes, thunderstorms, etc.) or for elderly or infirm dogs. The provisions of the AWA regulations may be instructive here: “The frequency, method, and duration of the opportunity for exercise shall be determined by the attending veterinarian.” 9 C.F.R. § 3.8(c)(1) and “Forced exercise methods or devices such as swimming, treadmills, or carousel-type devices are unacceptable for meeting the exercise requirements of this section.” 9 C.F.R. § 3.8(c)(4). Both provisions are absent from the proposed regulations. There is no evidence of the ongoing cost of compliance with these changes or the new recordkeeping requirements. However, it is reasonably sure that 1) puppies may be injured by 20 minutes of continuous exercise in very cold or very hot weather and 2) that some long haired and brachycephalic breeds will die if exercised for 20 minutes in 90 degree weather with a relative humidity of 90 percent. If the dogs are housed in primary enclosures of sufficient size without other dogs or if housed with other dogs in sufficient space, they will self exercise and limit exertion based on their age, breed characteristics and the weather so as to stay healthy. Furthermore, sporting, working, terrier and herding breeds frequently require a great deal of exercise to keep them sound, healthy, and mentally fit. A single regulation made without reference to breed characteristics does not serve the health or exercise requirements of the dogs. To provide for the best care of the dogs, exercise requirements must be tailored to the dogs and the conditions under which the exercise takes place. It is unclear to me why dogs are not permitted to become wet, matted or muddy under subparagraph (e)(ii)(C). Sporting, working, terrier and herding breeds come into contact with water, mud and dirt when performing the functions for which they were bred. The goal of this subparagraph appears to be that dogs be clean, dry and have unmatted hair. If that is the goal, why prevent the dogs from enjoying their freedom and purpose? Why not require meeting the goals rather than prescribing how they shall be met? Also, what do you propose to do about Komondor, Puli, Poodles, or a few other breeds, whose standards describes a dog that develops a corded coat? As some breeds mature, the coat will eventually reach to the ground. Will kennel inspectors be trained to know the standards for these breeds and to recognize their coats so their owners are not penalized incorrectly?
It
is unclear why exercise on grass is not permitted in subparagraph (e)(ii)(D),
which requires the floors of outside exercise areas to be made of the same
material as required in Subparagraph 21.24 (b)(ii)(6). The subparagraph referred to probably should
be (b)(ii)(7), since the former subparagraph does not cover type of flooring
and the latter one does. That
subparagraph restricts outdoor runs or exercise areas to concrete, gravel or
stone. Dogs may have enclosed outdoor runs made of concrete,
but they also love to run in the enclosed grass field surrounding kennels. A concern among owners of small kennels is
that this will no longer be permitted.
What purpose does it serve for the health or safety of the dog? Furthermore, most pet owners want pets that
are housetrained to eliminate outside.
How is the dedicated breeder who owns a class I private kennel supposed
to train his or her puppies to eliminate outside on the grass if they are
forbidden to exercise them on grass?
It
is unclear why dogs have to be separated by size under paragraph (e)(iii). For
dogs that are kenneled and well socialized, mixing sizes should not be a
problem. For dogs that don’t normally
reside in the same kennel or that are unsocialized, the intent of the
restrictions is understandable and a valuable addition. This is another example of the “one size fits
all” solution that permeates these proposed regulations. Different sized kennels and different
circumstances can have different outcomes.
The focus of the proposed regulations is not on outcomes, which defines
a desirable goal, but, rather on prescriptive procedures which may or may not
be the simplest or best way to obtain the outcome in a specific instance.
It is unclear why intact males and females cannot be exercised together
under subparagraph (e)(iii)(F). The
proposed regulations have removed the restriction on males and females being
housed together, but they want to restrict their ability to exercise together
unless they are neutered. This is
illogical on its face. Clearly males and
females should not be exercised or housed together if the bitch is in season
both for sound breeding practices and animal safety reasons. This does not explain the prohibition in
these proposed regulations.
Paragraph
(e)(iv) permits the Department to exempt dogs from the exercise requirements for
a period of time upon a written diagnosis by a veterinarian of an “injury
or other physical condition that would cause exercise to endanger the health,
safety or welfare of the dog.” The determination
must be for a “time period limited to the
amount of time medically necessary to recover from the injury or illness, state
the specific medical condition and reason for the exemption and list the time
period for the exemption.” It is not
clear why this provision is discretionary on the part of the Department. It would be better to permit the expert
written veterinary opinion to suspend the exercise requirements
automatically. Furthermore, placing a
specific time limit on exercise exemption may not be in the best interests of
the dog. Some congenital or hereditary
conditions may prohibit any sustained exercise on the part of the dog. Would the Department require that such dogs
be euthanized if they could not be exercised?
Given
the failure to explain the need for the uniform exercise regulations
themselves, it does not appear that the recordkeeping requirements of paragraph
(e)(v) are necessary or should apply to most kennels. In the instances where there is an actual
need for exercising dogs, the provision of subparagraph (e)(v)(B) should apply
if the Department is can demonstrate evidentiary problems proving
noncompliance.
7 P.A. Code § 21.24
Shelter, housing facilities and
primary enclosures. New
provisions establish separate requirements for indoor and outdoor kennel
facilities. These changes are based on situations encountered by the Department
over the last several years and in many cases set forth provisions contained in
the Animal Welfare Act and in the ''Military Dog Training Manual.'' The revised regulations address, clarify and
enhance sanitary and animal husbandry practices. They address and set forth
more detailed requirements for outdoor kennels in areas such as drainage,
construction and maintenance of primary enclosures, shade and shelter
requirements, bedding, lighting, slope of ground, and run and footing materials
for the dogs. They provide more detailed requirements for indoor kennels with
regard to slope of floor and drainage, construction of kennels and primary
enclosures, sanitation, storage of food and medical supplies and wash
facilities.
The addition of subsection (b) is a positive step towards
ensuring adequate care for dogs housed outdoors, something that has long been
absent from the regulations. However,
there is considerable confusion among the regulated community regarding the
coverage of this subsection, particularly paragraphs (8) and (11) regarding
runs and exercise areas. Paragraph (8)
applies to all kennels by reference in Section 21.23, but paragraph (11)
properly applies only to outdoor kennels since it is contained within that
subsection. There is concern on the part of some that the proposed amendment
will prohibit dogs from being exercised (or turned out) on grass fields for
exercise under paragraph 8 (specifying outdoor runs and exercise areas may be constructed of concrete, gravel or stone), as
discussed above under subparagraphs 21.23(e)(ii)(C) and (D), where they are
referenced.
Dogs that are trained for jumping, for hunting, for
earthdog events or for herding must be trained on a natural surface. It is more dangerous to jump dogs on
unyielding surfaces since it may cause injury.
Hunting and herding dogs and terriers must be trained in a natural
environment. These types of dogs require
a significant amount of activity to stay in proper condition. To perform their function, they must learn to
work in fields and woods. Dogs that are
shown in conformation, agility and obedience are shown both indoors and
outdoors on grass. They must feel
comfortable moving on both types of surface. This is consistent with the Military
Working Dog Program which states that “[m]uch of the required proficiency
training for an MWD team can and should be conducted in the working environment
or in a similar one.” Department of the
Army Pamphlet 190-12, page 23. In the
same vein, search and rescue dogs must be exercised in a natural
environment. It is not possible to train
them in static, artificial settings.
The Military
Working Dog Program also permits vegetation in the training areas - “Training areas must be kept clean, all
obstacles in good repair, and vegetation closely trimmed.” Department of
the Army Pamphlet 190-12, page 78. This
makes more sense that the arbitrary exclusion of dogs from exercise on grassy
areas.
There is a similar concern with
respect to paragraph 11 (keeping runs
and exercise areas free of grass and weeds).
There is no explanation given for the reason that grass is prohibited
and no idea of the outcome the regulations intends to foster. If the
Department’s intent is not to apply it as such, more clarity is desirable since
much of the regulated community does not understand it. If the Department intends to apply this to
all runs and exercise areas for all dogs, it makes no sense. If that is the case, please tell us how it
helps to prevent flea and tick infestation to clear a five foot area around
runs which are already four feet from any grass or weeds. Would not the use of a pesticide achieve the
same desired result as clearing a 5 foot swath around the runs? Why is that not an alternative and sufficient
precaution? This is another example of
prescribing methods, rather than desired outcomes.
With
respect to paragraph (b)(2), there is an incompatibility between the terms
“flat and level” and the requirement that the outdoor facilities and exercise
areas be sloped. They cannot be both.
The
standard in paragraph (b)(4) is arbitrary, capricious and an abuse of
authority. This absolute type of
standard is used throughout the proposed regulations. It is impossible for anyone to ensure that
bedding is dry and clean at all times
(emphasis added). A dog could soil
bedding overnight, mark its territory, or have been playing in the rain, and
the kennel owner would have a situation where he or she is in violation of the
regulations with no opportunity to learn about or correct the condition.
The
same comments apply to paragraph (b)(6)(iv) with respect to bedding. The provision of a requirement for additional
bedding in temperatures 35 degrees or below is vague in that there is no
standard for what constitutes sufficient additional bedding.
The standard set forth in paragraph (f)(3) also may be
arbitrary, capricious and an abuse of authority if it prevents the use of
standard wallboard which is not impermeable to moisture. It is unclear what degree of replaceablity
required. Clarification is desirable.
The requirement of this section that surfaces that come
in contact with the animals be impervious to water differs from the Military
Working Dog Program which state that a “pallet
will be provided for each dog. Pallets will be wolmanized wood or other
hardwood to resist insect infestation and chewing by the dog.” Department of the Army Pamphlet 190-12, page
77. It also permits the use of
plastic. Resting boards were previously
permitted in kennels, but were eliminated in an earlier regulation
revision. The reason for this is not
clear and the use of resting boards makes good animal husbandry sense as well
as providing an area for the dog’s comfort.
Many homes and Class I private use raised beds with a fabric cover
stretched across a frame. Rather than be
impervious to water, which would permit water to pond in the bed, the beds
permit water to drain through the fabric to maintain a dry condition. Why cannot resting boards and such bed be
used for the comfort of the dog?
The
standard set forth in paragraph (f)(7) regarding the daily removal of dirty and
non-potable water is at variance with the standard in Subsection 21.28 (2)
requiring potable water be available at all times. See comments on Section 21.28 below. As an aside, it would be helpful in making
comments on the proposed regulations if the Subsections, Paragraphs and
Subparagraphs were uniformly referred to throughout the proposals.
Paragraph
(f)(8) on new recordkeeping requirements is excessive and creates a situation
where the time to keep required records will significantly impact the time
needed take care of the dogs. This regulation
will not help the Commissioner carry out either the provisions or intent of the
act as required in 3 P.S. 459-902. It
creates unnecessary paperwork with no real benefit to kennel oversight.
Paragraph (f)(11)(iii) does not provide for any alternative designs which achieve the same purpose. For example, if the indoor runs are sloped to drains inside and the outdoor runs are sloped to drains outside (as required by the new regulations), why do you need a drain in the area to which no water will flow? Even the AWA Regulations recognize that innovative primary enclosure arrangements may be acceptable for some requirements (see, e.g. (9 C.F.R. § 3.6(d)). Also, this appears to be unnecessary since the runs are supposed to be squeegee dried under proposed regulation § 21.29(5). Paragraph (f)(12) specifies requirements for trash containers that are at variance with the requirements of Subsection 29(6) that the entire kennel area be free of refuse that could attract, rats, vermin, insects or other vectors of disease. See the discussion under that subsection.
Paragraph
(f)(13) appears to forbid the reuse of bedding after washing and
sanitization. Surely, that cannot be its
intent. Perhaps this could be reworded
to make the meaning more clear.
Paragraph (f)(15) requires that
substances “ that are toxic to dogs, including those substances necessary for normal
animal husbandry practices, may not be stored in food storage or preparation
areas.” This
certainly will create issues for small hobby and show kennels where food may be
prepared in a kitchen or a kennel building where laundry detergent and bleach
are kept near a food preparation area.
The kitchen of most homes, where food is prepared, usually has cleaning
products and other materials toxic to dogs (and humans). Separation of toxic materials from food is a
standard animal husbandry practice.
There is no need for this degree of specificity in the regulation. All that is necessary is that food products
not be contaminated by toxic substances.
Paragraph (f)(18) creates a standard for sanitization that is arbitrary, capricious and an abuse of authority and without scientific basis for being necessary for keeping the dogs healthy. This will be discussed in more detail under Section 21.29. 7 P.A. Code
§ 21.25 Temperature Control. This section provides more specific
language regarding temperature control in indoor and outdoor kennels and
establishes permissible temperature ranges. This addresses concerns expressed
by the Department's State dog wardens and district justices regarding vagueness
and a lack of clarity with regard to the current regulations.
Subsections
(a), (b) and (c) are reasonable and do not present a problem. The slab temperature standard in paragraph
(d) is another instance of the use of engineering standards in a situation that
is not suitable. First, how will kennel
inspectors measure slab temperature? The
issue should be whether the dogs are comfortable and the environment is
healthful, with reasonable ambient temperatures in the kennel. Especially where raised beds or other bedding
is used to eliminate contact between the slab and the animal, or where the
primary enclosure rests above the kennel floor, slab temperature is not
relevant. How is the kennel owner to determine
the slab temperature of the floor, especially when the floor is heated in the
winter? If it is warm and comfortable
and the dogs are healthy, that should be sufficient. This is another example of the imposition of
rigid standards which ignore other solutions to solve potential problems, an
approach is prevalent throughout the proposed standards. Subsection (d) should be eliminated.
Subsection (d) is another case where
more reasonable standards are presented in AWA regulations than in the proposed
regulations by the Department. Rather
than stating that the temperature never fall below 50 degrees nor exceed 85
degrees, the AWA Regulations state that “[t}he
ambient temperature must not fall below 45 [deg]F (7.2 [deg]C) for more than 4
consecutive hours when dogs or cats are present, and must not rise above 85
[deg]F (29.5 [deg]C) for more than 4 consecutive hours when dogs or cats are
present.” (9 C.F.R. § 3.2(a)). We are unsure of the scientific derivation
of the 50 degree standard for minimum temperature in the proposed regulations,
since it varies from the AWA regulations.
Similarly,
it is unclear upon what scientific standard the 85 degree maximum temperature
is based and why no flexibility is permitted as in the AWA Regulations. Based on experience, some dogs like to lie
outside in runs during the summer heat as long as the humidity is not high;
they do not develop health problems from the high temperatures. Since they have ready access to the cooler
inside and to water and suffer no ill effects, why are absolute temperatures
defined as applicable to all dogs.
Depending on the temperature, humidity, condition of the dog, and its
breed characteristics, different temperatures may be appropriate. The AWA regulations permit such variance and
allow veterinary professionals and industry standards to determine appropriate
levels for commercial kennels. “Auxiliary ventilation, such as fans,
blowers, or air conditioning must be provided when the ambient temperature is
85 [deg]F (29.5 [deg]C) or higher. The relative humidity must be maintained at
a level that ensures the health and well-being of the dogs or cats housed
therein, in accordance with the directions of the attending veterinarian and
generally accepted professional and husbandry practices.” (9
C.F.R. § 3.2(b)). Although these standards are not strictly
applicable to most of the licensed kennels in the Commonwealth, they are
illustrative of how meaningful standards may be written to provide flexibility
in their attainment, while maintaining the health and safety of the animals.
The requirements of subsection (e) more closely
relate to those of the AWA. With respect
to indoor and outdoor kennels, the standard in (e) would be a perfectly
reasonable one if, as discussed above, it were not so absolutely stated. A determination of whether the temperature
conditions provide for the health and well-being of the dog is one where a
veterinarian could make a reasonable determination regarding compliance. Absent such expert opinion, the standard should
permit some variation for duration and relative humidity.
7 P.A. Code
§ 21.26 Ventilation in Housing
Facilities.
Language has been added to clarify and address concerns expressed
by the Department's State dog wardens and district justices regarding vagueness
and a lack of clarity with regard to the current regulations. The new language
provides specific ventilation, humidity and air movement requirements.
This
entire section is filled with engineering standards that are needlessly
technical and overly confusing to the average non-commercial kennel owner
without clearly specifying the desirable outcomes to be achieved.
Paragraph
(b), is preferable to the standards used in Section 21.25 (as mentioned above),
and is sufficient unto itself. In the
present context, it is overly prescriptive in that the proposed regulation
requires the temperature not to exceed 85 degrees. How it is achieved is irrelevant to the
issues of health. It looks like someone
tried, somewhat unsuccessfully, to apply as many of the AWA Regulations for wholesale,
commercial kennels in interstate commerce to non-commercial, small, intrastate
kennels. Furthermore, the Military Working
Dog Program does not permit kennels to be air-conditioned, and only allows it
in support and food preparation areas. Department
of the Army Pamphlet 190-12, page 76. It
may be appropriate in some cases for working dogs and other types to become
accustomed to the environment in which they will work. This will make them better able to perform difficult
tasks under stressful conditions. For
example, it would be unfortunate if a search and rescue dog could not function
on hot, humid days or in the cold of winter because they were unaccustomed to
working in that environment. This is not
to say that reasonable standards should not be applied, but that all standards
should be reasonable with respect to the dog’s function and the environmental
conditions. Retrievers get wet, terriers
get dirty, and sighthounds run over long distances across varying
surfaces. Regulations that ignore these
realities will not work when broadly applied.
The
requirement for ground level ventilation to assure dry kennel floors during
cold weather as required in paragraph (a)(3) is a further example of defining
means and not ends. First, it is unclear
what kind and type of ventilation would meet the requirements of the
regulation. Second, kennels with
hydronically heated or radiant floors already provide another means to keep
floors dry in cold weather. Why require
a less efficient means which might, as a side effect, chill the dogs and cause
illness?
7 P.A. Code
§ 21.27 Lighting and Electrical
Systems. This section sets forth specific
lighting requirements for indoor and outdoor kennels and attached buildings. The
revisions are in response to concerns expressed by the Department's State dog
wardens and district justices regarding vagueness and a lack of clarity with
regard to the current regulations.
If
the concern is that lighting be available to see the dogs outside if necessary at
night, rather than that the outside be illuminated all night, this needs to be
clarified.
Again, the foot-candle standards are unnecessarily complex and overly technical. The AWA regulations are both more reasonable and readily understandable by the general public. “Indoor housing facilities for dogs and cats must be lighted well enough to permit routine inspection and cleaning of the facility, and observation of the dogs and cats. Animal areas must be provided a regular diurnal lighting cycle of either natural or artificial light.” (9 C.F.R. § 3.2(c)). Department Dog Wardens and district justices expressed concerns regarding vagueness and a lack of clarity with regard to the current regulations, thereby resulting in the inability to impose sanctions on violators. Both improving training in evidence collection and contacting the Federal officials responsible for implementing the regulations under the AWA might be a better approach to solving the problem than some of the highly technical proposed regulations. While it makes sense that GFCI receptacles be used in water prone areas, it also makes sense, and is required by most codes, to have them in outside areas, whether prone to spraying or not. It does not increase safety to require that all receptacles have spring covers, especially when connected to GFCI circuits. It would make more sense to require it when receptacles are at a height reachable by dogs in the kennel. 7 P.A. Code § 21.28
Feed, Water and Bedding. This section
establishes more specific and more stringent food, water and bedding
requirements. The amendments are aimed in part to address control of contagious
diseases and to assure dogs housed in kennels have access to water at all
times.
Again,
absolute, rigid standards are imposed without any apparent underlying
scientific basis. It is unreasonable to
hold someone to a standard that is unattainable as in subsection (2). If a dog turns over its water bowl, or
splashes the water out of it, or if the dog urinates or defecates in it, the
standard is immediately violated even by the most conscientious kennel
owners. This subsection is also at
variance with proposed paragraph 21.24(f)(7) which requires the daily removal
of non-potable water. The previous
standard requiring potable water at least 6 hours per day or the AWA regulation
are more realistic. “If
potable water is not continually available to the dogs and cats, it must be
offered to the dogs and cats as often as necessary to ensure their health and
well-being, but not less than twice daily for at least 1 hour each time, unless
restricted by the attending veterinarian.” (9 C.F.R. § 3.10). Almost any regulatory requirement other than “at
all times” would be more meaningful and enforceable.
The
same subsection mandates that food and water containers be accessible to dogs
and located to avoid contamination by feces and urine. Most food and water bowls are kept on the
floor, especially in homes. The bowls
cannot be so high that eating and drinking will be a problem. Where are they to
be placed and how high must they be?
Subsection
(3) does not provide for the use of disposable food bowls. Although many use only metal bowls that are
readily cleanable, the AWA regulations permit the use of disposable bowls (“If the food receptacles are disposable,
they must be discarded after one use.”
(9 C.F.R. § 3.9(b)). Therefore,
it is unclear why they are prohibited by the Department for non-commercial,
smaller kennels. Surely single use bowls
are more sanitary than bowls that are reused.
7 P.A. Code
§ 21.29 Sanitation. This section sets more specific
sanitation requirements and controls. The intent, in part, is to address the
control of contagious diseases within kennel facilities and to more effectively
address sanitation issues and requirements in outdoor kennels.
The
frequency of required sanitation and disinfection in this and other sections is
excessive. Daily sanitization, as
distinguished from cleaning, is not necessary to protect the health of the dogs
in small class I kennels where the population is stable. It makes more sense in large commercial
kennels where that chance for the spread of opportunistic diseases is more
prevalent. The AWA Regulations state: “Used
primary enclosures and food and water receptacles for dogs and cats must be
sanitized at least once every 2 weeks using one of the methods prescribed in
paragraph (b)(3) of this section, and more often if necessary to prevent an
accumulation of dirt, debris, food waste, excreta, and other disease hazards.” (9 C.F.R. § 3.11(b)(2)). Again, their standard is more reasonable for
the small kennel owner where the care and attention given the individual dog is
significantly greater than that found in puppy factories or in the commercial,
wholesale, interstate commerce arena.
The Military Working Dog Program requires that kennels “must be sanitary, in a good state of
repair, and thoroughly cleaned every day. Kennels should be disinfected at
least once every week using only those disinfecting products approved by the
veterinarian. Kennels also should be disinfected whenever an animal is removed
from a kennel so that the kennel will be ready to be occupied by another
animal.” Department of the Army
Pamphlet 190-12, page 69. This seems to
be a reasonable standard for homes and Class I private kennels.
Anyone
reading the standard Material and Safety Data Sheets (MSDS) accompanying
sanitization materials realizes that they are potentially hazardous to people
and animals. It is for this reason that
the daily sanitization and accompanying dislocation of the animals in the
kennel is excessive. The MSDS prescribes
the standards for safe use of the product.
The regulations attempt to address this by defining sanitization
procedures. It might, however, be better
to incorporate by reference the procedures listed in the MSDS for the products
used rather than issue regulations that may not be applicable to the particular
product being used or which might not keep up with safety advances in the
industry.
The requirement in paragraph
(1) mandating the sanitization, as contrasted with the cleaning, of outdoor
runs every day meets the same objection as above. Furthermore, it will create hazardous
conditions for the dogs during subfreezing weather. Does the Department have any guidance on how
to sanitize outside runs in such weather without creating a surface which might
injure the dogs? Again, the AWA
regulations may provide a better definition.
“Sanitize means to make physically clean and to remove and
destroy, to the maximum degree that is practical, agents injurious to health. (9 C.F.R. § 1.1). Clearly, in the
winter it might not be practical to sanitize the runs on a daily basis. This contrasts with the language in the
proposed regulations “[s]anitize — To make physically clean
and to remove and destroy, to a practical minimum, agents vectors of disease, bacteria and all
infective and deleterious elements injurious to the health of a dog (Proposed Regulations § 21.1) which
would appear to require such practices, causing potentially dangerous
conditions which the kennel owner would then have to attempt to remove as
injurious to the health of the dog.
There is an apparently unacknowledged difference in emphasis between the
phrases “to the maximum degree that is practical” and “to a practical minimum”
as used in the contrasted regulations.
Paragraph
(6) should be clarified by adding language similar to that in the AWA
Regulations. “Trash containers in housing facilities and in food storage and food preparation
areas must be leakproof and must have tightly fitted lids on them at all
times.” (9 C.F.R. § 3.1(f)). It is impractical to have “[t}he
entire kennel area . . .
free of refuse and garbage that could attract rats, vermin, insects and other
vectors of disease.” What should be required is that such items be
in enclosed containers resistant to being tampered with, similar to the
statement in paragraph 21.24(f)(12).
The intent of paragraph (7) is
laudable. However, the conclusions
therein are, in part, based on a logical fallacy. Just because there is evidence that, for
example, a dog or dogs have ticks, it does not mean that the program is
ineffective or there is “unsanitary environmental sanitation” in the
kennel. Ticks may be picked up when dogs
are removed from the property for short periods or the ticks may not be
immediately visible despite reasonable grooming and inspection of the dogs and
the reasonable use of pesticides in the area surrounding the kennel. The facts may not support the conclusion
reached in the regulation. A better
standard would refer to the degree of infestation and the percentage of dogs
bearing ticks that are attached. Since
ticks can take some time to attach, a large percentage of dogs so infested
would be evidence of a lack of proper monitoring of the health of the dogs. The opinion of a veterinarian would be
helpful in establishing the seriousness of the problem and the degree to which
the conditions in the kennel contribute to the existence of the problem.
With regard to veterinarian approval
of disinfectants, pesticides and disinfectant procedures, does this have to be
in writing? If so, why does the
Department issue specific regulations for disinfection instead of requiring a
program approved by a veterinarian?
Should this not be entirely left to the veterinarian?
7 P.A. Code
§ 21.30 Condition of Dog. Amendments
to this section were made for the purpose of addressing grammatical errors.
Given
the definition of establishment and temporary home, and since subparagraph
21.14(a)(iii)(2) of the proposed regulation makes temporary homes subject to
inspections, this is another area potentially permitting warrantless searches
of a home without the owners permission in violation of the statute (3 P.S. § 459-901) and the provisions of the
fourth amendment to the U.S. Constitution. This should be clarified and brought into
line with the statutory and constitution proscriptions.
Furthermore,
this section, authorizes mandated veterinary checks based on the observations
of a Dog Warden of an infectious or
contagious disease, parasites or appearance of poor health. However, it also mandates that the kennel
owner provide proof of adequate veterinary care and proposed paragraphs 21.41
(e)(5) and (e)(6) of the regulations require maintenance of medical
records. Such records would be prima
facie evidence of adequate veterinary care if care were recently provided. If Dog Wardens are permitted to order
veterinary examinations, they should occur only in cases where such records do
not exist or where the problem has occurred without recent veterinary
intervention. Dog Wardens should not
have the authority to place their judgment over that of a licensed veterinary
professional. In the alternative, if
such orders are permitted, the Warden must specify the problem believed to
exist and the Department should pay the costs of the veterinary examination if
it does not show the existence of the problem for which the examination was
ordered.
7 P.A. Code § 21.41 General Requirements. This section presents general requirements for kennel records. The amendments provide more specific provisions related to the amendments to the previous sections of these regulations. More specifically, they are more specific with regard to food, water and sanitation records, exercise records and injury and veterinary care records. The amendments also provide for unsworn falsification to authorities with regard to the records kept at kennels.
The record requirements of part of subsection (e) are overly burdensome on the kennel owner, requiring excessive amounts of time to record activities that provide no substantive benefit to improving the health of animals. Paragraphs (e)(1) and (e)(2) particularly require records that fall into the category of excessively time consuming, especially with the proposed requirement that these activities be conducted daily. The lack of need for these activities on a daily basis was discussed above. The remaining paragraphs do not appear unreasonable since they are not regular activities, but rather exceptions to normal circumstances. 7 P.A. Code § 21.42 Bills of Sale. The Department added subsection (b) to this section, addressing the in-State and out-of-State licensure provisions of the act. Subsection (b) notifies licensed kennel owners that it is a violation of the act to purchase, accept, sell on behalf of or transport a dog from a kennel required to be, but not licensed under the provisions of the act. It provides an exception where the Department provides the kennel owner with written permission to accept dogs from an unlicensed kennel. This is to allow the Department flexibility in closing unlicensed kennels. Furthermore, it should be noted that this provision is not intended to and does not affect the ability of a licensed kennel to sell dogs it owns.
See discussion under section 21.4 (b) regarding questioning how a kennel owner is to obtain the required information on kennels that should be licensed, but do not have the required licensing. The same concerns apply here. 7 P.A. Code
§ 21.64 This
section sets forth the requirement that the owner of the animal injured or
killed will not be compensated if the owner has already received reimbursement
for the injuries sustained or the loss of the animal.
To
prevent unjust enrichment of the owner of the animal injured or lost, the
section should include a requirement that any recovery from insurance or from
the owner of the dog causing the injury after payment from the Department will
be reimbursed to the Department up to the amount paid by the Department for the
injury or loss.
We have no substantive comments at this time on the proposed amendments to the regulations for which comments were not submitted. In summary, the proposed regulations: ● are well intended, but in many cases are unclear or set standards that are impossible to attain, causing undue hardship on the most responsible of dog owners. ● do not adequately define terms misunderstood in the regulations ● significantly understated the costs of
implementing the regulations for the
Commonwealth, local governments, the public
and the regulated community.
● apply standards applicable to large commercial kennels and standards used to maintain dogs in a military environment to small, private kennels. ● ignore the fact that fancier kennels produce dogs that are sounder and healthier than dogs produced commercially. This should be recognized in the regulations. ● use a “one size fits all” approach that is unsuitable for achieving their stated goals. ● stress stringent, overly prescriptive regulations, rather than trying to better clarify and enforce existing regulations. ● define processes and not the ends to be achieved, ignoring alternate methods of reaching the unstated objectives both better than those proposed and less onerous for the regulated community.
● risk
court challenge to the regulations and the loss of cases that the Department
hopes these proposed regulations will, in part, remedy.
I appreciate you taking the time to consider our concerns and comments. If you wish to discuss this further, I am at your disposal. Julian Prager Legislative Chair Pennsylvania cc: The Honorable Michael O’Pake The Honorable Douglas Reichley The Honorable Michael Brubaker The Honorable Michael K. Hanna The Honorable Arthur Hershey Arthur Coccodrilli, Chairman IRRC