February 21, 2007

 

Department of Agriculture

Bureau of Dog Law Enforcement

2301 North Cameron Street

Harrisburg, Pennsylvania 17110-9408

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 New York to perform animal control and animal shelter functions with the City limits.  NYCACC takes in over 45,000 stray, abandoned, lost or abused dogs and cats and a smaller number of wild animals.  Prior to that experience, I worked in several City agencies as a high level manager where, among other duties, I help negotiate, draft and interpret state and city legislation and regulations.

 

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.  Pennsylvania has significant issues with, and had experienced negative publicity over, its regulation of and oversight over both unlicensed kennels which should be licensed and large scale licensed kennels that do not comply with the law or regulations affecting their operation.  The Department believes that the new regulations are designed, in part, to rectify that situation by addressing concerns expressed by dog wardens and district justices regarding vagueness and lack of clarity in the current regulations.  To the extent that the new regulations significantly improve upon or clarify existing regulations, they will be well received by most of our members. 

 

            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 Louisville, KY regarding complaints from the hotels industry about cancellations and lost revenue from the imposition of new dog laws and has no intention of creating such a situation in the Commonwealth by imposing the proposed kennel requirements on hotels and motels.  However, since it does not so intend, the regulations should be explicit in their exclusion.

 

            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 Montgomery County (Maryland) Code § 5-404 distinguishes  between commercial and fancier kennels.  Commercial kennels are defined as an establishment to sell animals or breeds them for sale, or that provides boarding, grooming, or training for animals for a fee. It does not include a fancier's kennel.  A fancier’s kennel is defined as a private kennel maintained by a fancier.  The term fancier is defined as a person who owns or keeps 3 or more dogs or cats for noncommercial hunting, tracking, exhibition in shows, or field or obedience trials. Fancier does not include a person who keeps (1) 3 or more male dogs or cats primarily for commercial stud services; or (2) 3 or more female dogs or cats that each bear offspring more than once in a 12-month period.  

 

            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 Pennsylvania and what, if any, control it will assert over them, while attributing their cumulative total to the applicable local establishment.

 

 

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.

            Subsection (c) states “A dog entering this Commonwealth from another state, commonwealth or country shall have a health certificate.”  It then goes on to state that “[i]n 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.”  It would be clearer to place the second quoted sentence first, so that the subsection read as follows:  

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.

            Paragraph (1) states that dogs entering the Commonwealth must have certificates of health stating the age of the dog is at least 7 weeks and paragraph (5) requires a statement that 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).  However, the statute does not require vaccination of dogs within the Commonwealth until a puppy is at least 13 weeks old and vaccination may be delayed until the puppy is four months old (“Every person living in this Commonwealth, owning or keeping a dog or cat over three months of age, shall cause that dog or cat to be vaccinated against rabies.” 3 P.S. § 455.8 (a)).  It is not clear what, if any, vaccination is required for dogs older than 7 but less than 17 weeks, whether rabies vaccinations will protect dogs if vaccinated earlier than 13 weeks, and what statement the certificate should state for those under four months who have not been vaccinated. 

            The paragraph also appears to prohibit anyone from moving from another jurisdiction into the Commonwealth with their personal pets if they have a dam that is nursing puppies less than 3 weeks old since the statute grants only a 30 day period to bring a pet in before it is licensed.
(3
P. S. § 459-212).  This should be clarified.

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.