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PA Bulletin, Doc. No. 96-1430

RULES AND REGULATIONS

Title 7--AGRICULTURE

DEPARTMENT OF AGRICULTURE

[7 PA. CODE CH. 20]

Conditions and Requirements Under Which Domestic Animals May Be Offered as Prizes

[26 Pa.B. 4218]

   The Department of Agriculture (Department) establishes regulations in Chapter 20 (relating to conditions and requirements under which domestic animals may be offered as prizes).

   The act of April 29, 1994 (act) (P. L. 146, No. 24) amended the cruelty to animals provision of the Crimes Code to establish, in 18 Pa.C.S. § 5511.1 (relating to live animals as prizes prohibited), a general prohibition against the offering or giving away of any live animal--except fish--as a prize in a game. Under section 2 of the act, 18 Pa.C.S. § 5511.1(b)), this general prohibition does not apply to a domestic animal given away in connection with an agricultural, educational or vocational program sponsored or sanctioned by the Department. Section 2 of the act also requires, in 18 Pa.C.S. § 5511.1(b)(2), the Department to promulgate regulations necessary to provide the conditions and requirements of live animal offerings within that exception. It is under the foregoing statutory authority that these regulations are adopted.

Compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation''

   Executive Order 1996-1, ''Regulatory Review and Promulgation,'' requires that any regulation address a compelling public need.

   These regulations prescribe the conditions and requirements which, if met, would allow an agricultural, educational or vocational program to offer a domestic animal as a prize in a contest. The regulations define and clarify terms that are not defined in the act, and set forth necessary procedures by which an agricultural, educational or vocational program can be considered sponsored or sanctioned by the Department for purposes of the exception set forth in 18 Pa.C.S. § 5511.1(b)(1).

   In the absence of these regulations, an entity such as a 4-H club or a chapter of the Future Farmers of America would run the risk of being prosecuted under 18 Pa.C.S. § 5511(a) if it conducted a traditional raffle, competition or similar game in which an animal that has been historically considered a farm animal is given away as a prize.

   These regulations also provide guidance to police officers and agents of societies for the prevention of cruelty to animals--which are charged with enforcement of 18 Pa.C.S. § 5511.1.

   The Department is satisfied that these regulations serve a compelling public need imposed by the General Assembly, and that these regulations otherwise comply with Executive Order 1996-1.

Comments

   Notice of proposed rulemaking was published at 25 Pa.B. 3870 (September 16, 1995) and provided for a 30-day public comment period.

   Comments were received from the Federated Humane Societies of Pennsylvania, the Pennsylvania Legislative Animal Network (PLAN), Representative Jerry L. Nailor, the House Agriculture and Rural Affairs Committee (House Committee) and the Independent Regulatory Review Commission (IRRC). These comments, and the Department's responses, follow.

   The Federated Humane Societies of Pennsylvania offered its support for the proposed regulations recommending that they be adopted without changes.

   Representative Jerry L. Nailor, the prime sponsor of the act, offered general support for the regulations, and concurred with all of the comments offered by PLAN.

   IRRC offered the suggestion that the term ''domestic animal'' supplant ''live domestic animal'' throughout the regulations to make it more consistent with the act.

   The Department accepts this comment, and has revised the regulations accordingly.

   Several comments were received with respect to § 20.2 (relating to definitions).

   PLAN suggested the definition of ''live animal'' include germ plasm, embryos and fertile ova. IRRC suggested that this definition be deleted altogether, since the act is sufficiently clear.

   The Department accepts IRRC's suggestion, and has deleted the term ''live animal.''

   With respect to the definition of ''sanction,'' PLAN asked for clarification of what is meant by a ''designee'' of the Secretary, and an estimate of the number of designees the Secretary plans to appoint.

   The Department intends the term ''designee'' to refer to those employes of the Department's Bureau of Animal Industry (Bureau) who will oversee the day-to-day administration of the act and its attendant regulations. These designees are most likely to include the Bureau Director and, as deemed necessary, other licensed practitioners of veterinary medicine employed by the Bureau.

   PLAN and IRRC recommended the definition of ''vocational program'' include programs having the preparation of its participants for careers in the agricultural sciences--as opposed to the sciences in general.

   The Department accepts this comment, and has revised the definition accordingly.

   Proposed § 20.4 (relating to coupons or discounts as prizes) specified that a person who offers or gives away as a prize in a game a discount or coupon that would allow a domestic animal to be purchased for less than $50 is giving or offering to give away a domestic animal as a prize in a game, for purposes of the act and this chapter. IRRC questioned whether this less-than-$50 figure is a nominal sum justifying the transaction being considered a giving or offering to give away with respect to a domestic animal. IRRC requested the rationale behind the Department's use of this less-than-$50 figure.

   The Department intended § 20.4 to prevent game operators from avoiding the requirements of the act by awarding coupons or discounts that would allow a game participant to acquire a domestic animal at significantly less than its value. The Department acknowledges that this problem is more prevalent among game operators who offer as prizes coupons or discounts toward the purchase of live animals other than domestic animals. In light of this fact, and the Department's narrowly-prescribed authority under the act, the Department has deleted proposed § 20.4 in its entirety and renumbered subsequent sections accordingly.

   IRRC raised several concerns regarding § 20.6 (relating to applying for designation as a program sanctioned by the Department). Initially, IRRC suggested the Department develop a basic application form requiring the information described in proposed § 20.6(b), and inform prospective applicants of how they may obtain these application forms.

   The Department accepts this suggestion. A basic application form will be provided upon request. A new § 20.6(b) has been added, describing the method by which a person may obtain an application. Proposed § 20.6(b)--(f) have been redesignated as § 20.6(c)--(g).

   IRRC recommended § 20.6(c)(5) be made more specific by substituting the phrase ''that may be offered or given away as a prize'' for the word ''offered.''

   The Department accepts this recommendation, agrees that it adds clarity and has amended § 20.6(c)(5) accordingly.

   IRRC noted that § 20.6(f) and (g) prescribe definite periods within which specific actions must be taken and that § 20.6(e), by contrast, merely required the Department to provide prompt notification of deficiencies in an application.

   The Department accepts IRRC's recommendation that § 20.6(e) be more specific as to what constitutes prompt notification. That subsection has been revised to require the notification be forwarded within 10 days of receiving the application.

   IRRC noted that § 20.6(g) required an applicant's hearing request to be delivered to the Department within 20 days from the date upon which the applicant received the Department's decision, and questioned how the Department would be able to confirm the date upon which the applicant received the Department's decision. As a more workable alternative, IRRC suggested the Department commence the appeal period on the date the decision is mailed to the applicant--rather than the date upon which it is received by the applicant--and add 5 days to the 20-day appeal period to allow for delivery time.

   The Department accepts this recommendation, and has revised § 20.6(g) accordingly.

   IRRC offered the comment that § 20.7 (relating to circumstances under which a game is conducted in connection with an agricultural, educational or vocational program) should be applicable only to programs sanctioned by the Department, and not to programs sponsored by the Department.

   Section 20.4 requires the program sponsored by the Department to be the entity that actually conducts the game. Section 20.7 provides for a circumstance where the game could be conducted by some other entity. In light of this, the Department agrees § 20.7 should only be applicable to programs sanctioned by the Department. That section has been revised accordingly.

   IRRC noted § 20.8 (relating to conditions and requirements of domestic animal offerings) required a person offering or giving away a domestic animal as a prize in accordance with that section to retain the veterinarian's certification required at § 20.8(a)(2) and the instructions for animal care required at § 20.8(a)(3), without specifying the period for which these documents should be retained.

   Since a violation of the act would constitute a summary criminal offense, IRRC recommended the regulation require retention of these records for at least 2 years, the applicable statute of limitations, as established at 42 Pa.C.S. § 5552 (relating to other offenses).

   The Department accepts IRRC's recommendation, and has revised § 20.8(a)(2) and (3) to include specific language provided by IRRC.

   IRRC suggested a section be added to these regulations repeating the penalty provisions established by the act in 18 Pa.C.S. § 5511.1(d).

   The Department implemented this suggestion by adding the appropriate language at § 20.8(b).

   PLAN asked whether the citation for the Dog Law (3 P. S. §§ 459-101--459-1205) set forth at § 20.8(c) is accurate.

   The Department responds that the citation is, in fact, accurate.

   The House Committee offered its general support for the proposed regulations, and raised two separate scenarios in which bovine animals would be awarded as prizes in a game. The first scenario involved a Rotary Club raffling a bovine animal at a Grange Fair. The second scenario involved a newspaper awarding a bovine animal to the winner of a county 4-H steer show. The House Committee expressed its expectation that these activities would be permissible under the regulations.

   In each scenario the entity seeking to conduct the contest would have to either apply for and obtain the written sanction of the Department under § 20.5 (relating to circumstances under which sanction is required) and § 20.6 or, if it is conducting the game to benefit an agricultural, educational or vocational program (such as a grange fair or county 4-H club) such that at least 90% of the game proceeds would benefit the program, the program itself could apply for the written sanction of the Department. The facts of each scenario would determine whether a domestic animal can be awarded as a prize in a game and by which process this could be accomplished in compliance with the act. To clearly distinguish between games and vocational exhibitions or competitions, though, the definition of ''game'' at § 20.2 has been revised to specifically exclude exhibitions or competitions of agricultural animals for agricultural vocational purposes.

Fiscal Impact

Commonwealth

   The regulations will impose no costs and have no fiscal impact upon the Commonwealth.

Political Subdivisions

   The regulations will impose no costs and have no fiscal impact upon political subdivisions.

Private Sector

   The regulations will require entities conducting games in which domestic animals are awarded as prizes to incur the cost of obtaining a veterinarian's certification that the animals are apparently free of diseases or physical defects. Although the costs involved are not readily estimable, they should be reduced to some extent by the fact that veterinarian certifications are rather commonly required with respect to cattle, horses, goats, sheep and swine moving in commerce.

General Public

   The regulations will impose no costs and have no fiscal impact upon the general public.

Paperwork Requirements

   The regulations are not expected to result in an appreciable increase in paperwork. The Department will develop a simple application form by which persons may seek the Department's written sanction in accordance with § 20.6.

Contact Person

   Further information is available by contacting the Department of Agriculture, Attention: Max A. Van Buskirk, Jr., VMD, Bureau of Animal Industry, 2301 North Cameron Street, Harrisburg, PA 17110-9408

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 5, 1995, the Department submitted a copy of the notice of proposed rulemaking published at 25 Pa.B. 3870 to IRRC and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation.

   In preparing these final-form regulations, the Department has considered the comments received from IRRC, the Committees and the public.

   These final-form regulations were deemed approved by the House Committee and the Senate Committee on July 9, 1996, and were approved by IRRC on July 18, 1996, in accordance with section 5(c) of the Regulatory Review Act.

Findings

   The Department of Agriculture finds that:

   (1)  Public notice of intention to adopt the regulations encompassed by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law and that the comments received were considered.

   (3)  The modifications that were made to these regulations in response to comments received do not enlarge the purpose of the proposed regulations published at 25 Pa.B. 3870.

   (4)  The regulations meet the requirements of Executive Order 1996-1, ''Regulation Review and Promulgation.''

   (5) The adoption of the regulations in the manner provided by this order is necessary and appropriate for the administration of the authorizing statute.

Order

   The Department of Agriculture, acting under the authorizing statute, orders that:

   (a)  The regulations of the Department, 7 Pa. Code, are amended by adding §§ 20.1--20.9 to read as set forth in Annex A.

   (b)  The Secretary of the Department shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General for approval as required by law.

   (c)  The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect upon publication in the Pennsylvania Bulletin.

CHARLES C. BROSIUS,   
Secretary

   (Editor's Note: The proposal to add § 20.10 has been withdraw by the Department.

   For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 3776 (August 3, 1996).)

   Fiscal Note: 2-92. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 7.  AGRICULTURE

PART I. BUREAU OF ANIMAL INDUSTRY

CHAPTER 20. CONDITIONS AND REQUIREMENTS UNDER WHICH DOMESTIC ANIMALS MAY BE OFFERED AS PRIZES

Sec.

20.1Purpose.
20.2Definitions.
20.3.Requirement of sponsorship or sanction.
20.4.Obtaining status as a program sponsored by the Department.
20.5.Circumstances under which sanction is required.
20.6.Applying for designation as a program sanctioned by the Department.
20.7.Circumstances under which a game is conducted by a program sanctioned by the Department.
20.8.Conditions and requirements of domestic animal offerings.
20.9.Liability.

§ 20.1.  Purpose.

   This chapter, which is authorized under 18 Pa.C.S. § 5511.1(b)(2) (relating to live animals as prizes prohibited), establishes the conditions under which an agricultural, educational or vocational program may conduct a game at which a domestic animal may be offered or given away as a prize. It also establishes requirements governing how a game shall be conducted.

§ 20.2.  Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Act--The act of April 29, 1994 (P. L. 142, No. 24), which amended 18 Pa.C.S. § 5511(j) (relating to cruelty to animals) and established 18 Pa.C.S. § 5511.1 (relating to live animals as prizes prohibited).

   Agricultural program--A program having the cultivation of soil or water, the production of plants, the production of domestic animals or the production of some agricultural product as its primary purpose.

   Department--The Department of Agriculture of the Commonwealth.

   Domestic animal--A dog, cat, equine animal, bovine animal, sheep, goat or porcine animal.

   Educational program--A program having the instruction of its participants in agriculture, subjects related to agriculture, the sciences or rural community leadership as its primary purpose.

   Fish--A live animal member of the superclass Pisces.

   Game--A drawing, lottery, contest, sweepstakes or similar activity engaged in for diversion, amusement or profit, regardless of whether its outcome is determined by the skill of the participant, random chance or some combination of the two. The term does not include an exhibition or competition of agricultural animals for agricultural vocational purposes.

   Person--An individual, partnership, sole proprietor- ship, corporation or business entity.

   Prize--An article or other consideration, such as a coupon or discount, awarded to a game contestant or any other person as a result of a contestant's participation in a particular game, regardless of whether the awarding of the prize is contingent upon achieving some level of success in the game or upon mere participation in the game.

   Sanction--The action taken by the Department when the Secretary or a designee issues a written notice that a particular program is an agricultural, educational or vocational program to which the exception in 18 Pa.C.S. § 5511.1(b)(1) applies.

   Secretary--The Secretary of the Department.

   Sponsor--The relationship of the Department to an entity to which it awards grants under authority of the Agricultural and Rural Youth Development Act (3 P. S. §§ 1601--1609), the Pennsylvania Agricultural Fair Act (3 P. S. §§ 1501--1508) or other statutory authority by which the Department may award grants or extend loans to agricultural, educational or vocational programs.

   Vocational program--A program having the preparation of its participants for careers in agriculture or the agricultural sciences as its primary purpose.

§ 20.3.  Requirement of sponsorship or sanction.

   A person may not give or offer to give away any live animal, except fish, as a prize in a game unless the animal is a domestic animal and is offered or given away in connection with an agricultural, educational or vocational program sponsored or sanctioned by the Department.

§ 20.4.  Obtaining status as a program sponsored by the Department.

   An agricultural, educational or vocational program shall be considered sponsored by the Department for purposes of the act, without the requirement that it obtain written confirmation of this status from the Department in advance of conducting a game at which a domestic animal is to be offered or given away as a prize, if the following apply:

   (1)  The program has been sponsored by the Department at any time during the year preceding the date upon which the domestic animal is to be offered or given away as a prize in a game.

   (2)  The program is the entity that actually conducts the game and offers or gives away the live domestic animal.

§ 20.5.  Circumstances under which sanction is required.

   An agricultural, educational or vocational program that is not sponsored by the Department may apply for and obtain written confirmation that it is sanctioned by the Department for purposes of the act prior to conducting any game at which a domestic animal is to be offered or given away as a prize.

§ 20.6.  Applying for designation as a program sanctioned by the Department.

   (a)  Application required. An agricultural, educational or vocational program seeking the designation that it is sanctioned by the Department for purposes of the act shall submit a written application for the designation to the Department.

   (b)  Obtaining an application. A person may obtain an application form by mailing a written request to the address in subsection (d).

   (c)  Contents of application. The application form shall contain:

   (1)  The name and address of the person who proposes to offer or give away a domestic animal as a prize in a game to be held in connection with an agricultural, educational or vocational program.

   (2)  A description of the agricultural, educational or vocational activities conducted or promoted by the program described in paragraph (1).

   (3)  A statement identifying any entity that shall receive any portion of the proceeds of the game and setting forth the percentage of the proceeds that the entity shall receive.

   (4)  A statement setting forth the date, time and location of both the agricultural, educational or vocational program and the game at which it is proposed that any domestic animal be offered or given away as a prize.

   (5)  A description of the species and number of domestic animals that will be offered or given away as a prize.

   (6)   A copy of the written instructions for proper care of the domestic animal that would be issued to any person to whom the domestic animal is given.

   (d)  Delivery of application. The application form shall be mailed or delivered to the following address:

   Bureau of Animal Industry
   Division of Regulation and Compliance
   Agriculture Building, Room 403
   2301 North Cameron Street
   Harrisburg, PA 17110

   (e)  Completeness review. The Department will review each application for completeness. If the application is incomplete, or if additional information is required, the Department will, within 10 days of receiving the application, notify the applicant of this deficiency. The notification may be accomplished by telephone or by mailing a written notice.

   (f)  Determination. Within 20 days of receiving a complete application, the Department will issue to the applicant written notice of whether the agricultural, educational or vocational program described in the application is sanctioned by the Department for purposes of the act. If the written notice states that the program is sanctioned by the Department, it shall also set forth an expiration date for this sanction.

   (g)  Reconsideration. An applicant may request that the Secretary conduct a hearing to review and reconsider any decision issued under subsection (f). The hearing request shall be in writing, and be delivered to the Department within 25 days from the date the Department's decision was mailed to the applicant. Upon receipt of a timely hearing request, the Secretary will designate a hearing examiner to take testimony, consider evidence and submit a proposed adjudication for the Secretary's consideration on the issue of whether a modification of the original decision is warranted. The Secretary will then issue a final adjudication.

§ 20.7.  Circumstances under which a game is conducted by a program sanctioned by the Department.

   A game may be conducted by a program sanctioned by the Department if one of the following applies:

   (1)  The game is conducted by the agricultural, educational program sanctioned by the Department and the program receives the proceeds of the game.

   (2)  The game is conducted by some other entity, such as a vendor or subcontractor, and the agricultural, educational or vocational program sanctioned by the Department receives at least 90% of the proceeds of the game.

§ 20.8.  Conditions and requirements of domestic animal offerings.

   (a)  General. A person who offers or gives away a domestic animal as a prize in a game conducted in connection with an agricultural, educational or vocational program sponsored or sanctioned by the Department shall adhere to the following conditions and requirements:

   (1)  Unweaned animals. A domestic animal may not be offered or given away unless it is weaned. An animal is weaned if it accepts sufficient food and water to meet its nutritional needs from a source other than a parent.

   (2)  Veterinarian's certification. A domestic animal may not be offered or given away unless it is accompanied by written certification from a licensed veterinarian that it has been examined and found free of evidence of disease or physical defect no more than 10 days prior to the offering or giving away. The person offering or giving away the domestic animal shall retain a copy of this veterinarian certification for 2 years from the date the domestic animal was offered or given away.

   (3)  Instructions for handling and care. A domestic animal may not be offered or given away unless it is accompanied by a written statement setting forth its origin, age, sex and instructions for its proper care. The person offering or giving away the domestic animal shall retain a copy of this statement for 2 years from the date the domestic animal was offered or given away.

   (4)  Persons under 18 years of age. A domestic animal may not be given away to a person under 18 years of age unless the person giving away the animal first obtains the written consent of a parent or guardian of the prospective recipient of the animal. The person offering or giving away the domestic animal shall retain a copy of this written consent for 2 years from the date the domestic animal was given away.

   (b)  Violation of conditions and requirements. If the Department has sponsored or sanctioned an agricultural, educational or vocational program, that sponsorship or sanction will be considered void if the person offering or giving away a domestic animal as a prize in a game held in connection with the program violates a condition in subsection (a). If a person violates a condition in subsection (a), the statutory exception in 18 Pa.C.S. § 5511.1(b) (relating to live animals as prizes prohibited) does not apply, and the person offering or giving away the domestic animal shall be subject to prosecution under the act. The violation will be prosecuted as a summary criminal offense punishable by a fine of not more than $250.

   (c)  Dog Law. The requirements of this chapter do not supersede or supplant duties or responsibilities imposed under authority of the Dog Law (3 P. S. §§ 459-101--459-1205).

§ 20.9.  Liability.

   The Department will not be liable or otherwise responsible for the condition of a domestic animal offered or given away in accordance with the act and this chapter.

[Pa.B. Doc. No. 96-1430. Filed for public inspection August 30, 1996, 9:00 a.m.]



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