RULES AND REGULATIONS
Title 7--AGRICULTURE
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 21]
Dog Shelters--Rest Boards and Vinyl Coated Wire
[31 Pa.B. 1682] The Department of Agriculture (Department), under the Dog Law (act) (3 P. S. §§ 459-101--459-1202), amends § 21.24 (relating to shelters).
Authority
The Department has the power and authority to adopt this amendment. This authority includes:
(1) The general duty to implement the policy of the act in section 101 of the act (3 P. S. § 459-101) which states this in an act ''. . . relating to dogs, regulating the keeping of dogs; providing for the licensing of . . .kennels. . .'' and ''. . . providing for the protection of dogs . . . .'' The Department has a duty to assure the proper and humane care of dogs kept in captivity.
(2) The specific authority conferred by section 207(b) of the act (3 P. S. § 459-207(b)), which confers upon the Department the power to promulgate regulations regarding the maintenance of kennels. It states, ''(A)ll kennels shall be maintained in a sanitary and humane condition in accordance with standards and sanitary codes promulgated by the secretary.''
Need for the Amendment
Current § 21.24(d) became effective April 12, 1996. The current regulation requires kennels that house dogs in a primary enclosure with wire flooring to provide a solid draft free resting surface to allow the dogs to rest comfortably. The regulation was originally enacted to protect the health and safety of dogs, assure their humane treatment and to bring the Department into closer compliance with the Federal regulations regarding the sheltering of dogs in kennels.
The Department vigorously enforced the regulation and all kennels with wire or mesh flooring were brought into compliance with the rest board requirements. However, the Department soon began receiving complaints concerning the health of dogs deteriorating due to fecal matter and urine collecting on the rest boards. It was impossible for kennel owners to keep the rest boards sanitized at all times, thus creating unsanitary conditions for the dogs. Illness and disease were occurring at a higher rate with rest boards in place than had occurred prior to the enactment of the regulations requiring rest boards. In addition, the Federal regulations were changed, setting aside the rest board requirement.
This amendment will allow for the removal of rest boards, which will address the safety and health issues that have arisen subsequent to their use. At the same time, the amendment addresses the comfort, safety and humane treatment of the dogs by requiring that a dog may be sheltered in a primary enclosure having metal strand flooring provided the metal strand flooring is coated with a vinyl type coating. The coated metal strand flooring shall be kept in good repair and be made of mesh construction that does not allow the dog's feet to pass through any opening in the floor and does not otherwise cause injury to the dog. The coated metal strand flooring shall be of sufficient diameter (gauge) to provide a completely rigid floor area sufficient to support the weight of dog housed in the enclosure so that the metal strand floor does not bend or sag from the weight of the dog. The amendment requires a kennel owner to install vinyl coated metal strand flooring before removing any rest boards. Kennel owners may keep rest boards in place, but will still be required to install vinyl coated metal strand flooring meeting the standards of the regulation and will be required to keep the rest boards sanitized.
This amendment is intended to update the Department's policy regarding the sheltering of dogs in kennels. This amendment is consistent with the Department's duties under the act. In addition, the amendment is very similar, although slightly more stringent than, the Federal regulations regarding the sheltering of dogs in kennels, which are set forth in 9 CFR 3.6(a)(xii) (relating to primary enclosures). In the interest of continuing to carry out the policy of the act, to assure the health, safety and humane treatment of dogs, the Department adopts this amendment to effectuate the changes referred to in this Preamble. In summary, the Department is satisfied there is a need for the amendment, and that it is consistent with Executive Order 1996-1, ''Regulatory Review and Promulgation.''
Comments
Notice of proposed rulemaking was published at 30 Pa.B. 3660 (July 22, 2000), and provided for a 30-day public comment period. In accordance with section 902 of the act (3 P. S. § 459-902) the Department held a public hearing on October 12, 2000, with regard to the amendment. Notice of the public hearing was published at 30 Pa.B. 5152 (October 7, 2000). In addition, commentators, Dog Law Advisory Board (Board) members and other interested parties, such as those who normally attend the public meetings of the Board were notified of the public hearing by regular mail. An official record of the public hearing is available for public inspection.
Comments were received from the Independent Regulatory Review Commission (IRRC); the Honorable Stewart J. Greenleaf; the Honorable Noah W. Wenger; Johnna L. Seeton, Chairperson, Pennsylvania Legislative Animal Network; Dotsie Keith, Legislative Chairperson, Pennsylvania Federation of Dog Clubs and Anne Irwin, President, Federated Humane Societies of Pennsylvania.
Comment: IRRC commented regarding the minimum standards for wire flooring. IRRC had six concerns related to the reasonableness, clarity and consistency with existing regulations of the proposed requirements for wire flooring.
First, IRRC commented the proposed amendment requires the use of vinyl-coated flooring in primary enclosures if a kennel removes rest boards. IRRC noted that the Federal regulation in 9 CFR 3.6 allows for the removal of rest boards and requires that the flooring be ''constructed of metal strands greater than 1/8 of an inch in diameter (9 gauge) or be coated with a material such as plastic or fiberglass.'' IRRC suggested that rather than write a different regulation, the Department should consider incorporating the Federal regulations by reference.
IRRC's second comment relating to the minimum standards for wire flooring concerned the recommendations of four commentators that the regulation should include a minimum standard of greater than 1/8 of an inch in diameter for vinyl-coated metal strands. IRRC specifically commented that such a standard would exceed the Federal regulations, which does not require a coating for strands greater than 1/8 of an inch in diameter. IRRC questioned whether the Department had a compelling reason that justified exceeding the minimum standards of the Federal regulations.
IRRC's third comment with regard to the minimum standards for wire flooring concerned the clarity of the regulation. IRRC stated that § 21.24(d) is a long subsection (containing seven sentences) and that four of the sentences contain six requirements relating to minimum standards for metal strand flooring. IRRC suggested these requirements would be ''. . . easier to understand if they were set forth clearly as a list in the proposed regulation.''
IRRC's fourth comment concerning the minimum standards for wire flooring concerned clarity as well. Section 21.24(d) states that the metal strand flooring shall provide a ''rigid floor area'' that ''does not bend or sag.'' IRRC questioned whether any deviation from a straight line would constitute a sag and whether the floor must be completely rigid, or if some degree of variation or flex is allowable. IRRC commented the Department should clarify this requirement.
IRRC's fifth comment related to clarifying the language regarding a draft free area. IRRC suggested the Department should clarify whether this provision applied to the entire primary enclosure or only part of the enclosure area or an attached area accessible to the dog.
IRRC's sixth comment with regard to the minimum standards for wire flooring was that the amendment should be consistent with the Federal regulations and use the words ''metal strands'' instead of ''wire.''
Response: With regard to IRRC's first comment related to the minimum standards for wire flooring, the Department believes that it cannot merely reference the Federal regulation in 9 CFR 3.6. The Department has been working for 3 years with the Board, members of the regulated community and other interested persons regarding the proposed amendment. The Department even established a special Rest Board Committee (Committee) to discuss the current proposed amendment. During those discussions the most heated debate was with regard to the removal of the rest boards. A compromise was eventually struck leading to an agreement to allow for the removal of rest boards, so long as all primary enclosures having wire flooring would be required to have coated wire flooring. The Department realizes the amended regulation would be more stringent than the current Federal regulation, which allows metal strand flooring to be uncoated, so long as it is 1/8 of an inch in diameter. However, given the compromise struck between the parties interested in and affected by the proposed amendment, the Department is unable to reference the Federal regulation in its entirety and feels it would be confusing to reference only part of the Federal regulation or attempt to explain an exception to the Federal regulation. In addition, the vinyl coating does add additional protection for the dog and thereby creates a more healthy and humane environment for the dog. As an additional point of clarity, as these regulations have progressed it has become apparent that the groups commenting on the proposed amendments would prefer that the words ''wire flooring,'' which is in the current regulation, be replace with the words ''metal strand'' or ''metal rod.'' The Department addresses this issue in its response to IRRC's second comment regarding minimum standards for wire flooring.
In response to IRRC's second comment regarding the minimum standards for wire flooring, after consideration of the official comments, a public meeting on the matter and consideration of testimony entered into the record at a public hearing held to discuss the proposed amendment, the Department finds no compelling reason to exceed the standards of the Federal regulation by requiring all coated metal strands to be greater than 1/8 inch in diameter. The Department holds this belief for the following reasons:
(1) The amendment requires the coated metal strand flooring ''. . .must be constructed of sufficient diameter (gauge) to provide a completely rigid floor area sufficient to support the weight of dog(s) housed in the enclosure such that the metal strand floor does not bend or sag from the weight of the dog(s).'' The commentators reason for requesting the use of the term ''metal rod'' was because ''metal rod'' denotes a metal strand that is greater than 1/8 of an inch. The commentators believe that by requiring the metal strands to be greater than 1/8 of an inch the coated metal strand flooring is guaranteed not to bend or sag, or will be less likely to bend or sag and therefore provide a more rigid surface for the dog. The language of the amended regulation addresses the commentators concerns regarding a completely rigid surface by stating the diameter of the metal strand must be of sufficient diameter (gauge) that it provides a rigid surface and does not allow the metal strand floor to bend or sag under the weight of the dog. There is a zero tolerance for bending or sagging no matter the size or number of dogs contained in the enclosure. In addition, for the Department to require both greater than 1/8 of an inch and a metal strand of sufficient diameter (gauge) to assure a rigid surface that does not bend or sag would be redundant and could lead to problems with enforcement (that is, the question which standard is it?).
(2) Requiring all coated metal strand flooring to be 1/8 inch or greater in diameter would lead to enforcement problems, greater expense and much more time spent inspecting each individual kennel and prosecuting each violation and would not add any benefit that the current language of the regulation does not already address. It would be impossible for the Department to determine, with a coated metal strand, whether the metal strand itself is 1/8 of an inch or greater in diameter without destroying the vinyl coating on the metal strand. The coating on the metal strand would then have to be replaced in order to be in compliance with the regulations. In addition, the Department, to enforce a violation, would have to test all of the enclosures having coated metal strands. The dog law wardens would have to carry metal gauges and those gauges would have to be calibrated and certified as accurate. The accuracy would have to be proven when prosecuting each violation.
(3) Metal strands of 1/8 inch or greater do not guarantee the strength of a metal strand floor. Many factors, such as the construction or pattern of the metal strand flooring, the tensile strength of the material used in the metal strand flooring and the number of welds, determines the actual strength and rigidity of a metal strand floor. The current language of the regulation is broad enough to allow the Department to require stronger metal strand flooring be used in any primary enclosure where the current metal strand flooring is not of sufficient strength to support the weight of the dog with out bending or sagging. The Department, under the current language, does not have to prove diameter (gauge), tensil strength or improper metal strand floor construction in order to enforce a violation.
(4) The amendment would be much more stringent than the Federal regulation and would place an undue burden on the regulated community. The Department will however change the phrase ''wire flooring'' to ''metal strand flooring'' throughout the amendment. The Department does this in response to comments in the proposed stage, testimony at a public hearing and to make the Department's regulations more consistent with the Federal regulation.
In response to IRRC's third comment concerning the clarity of the amendment and suggesting the Department set forth the six requirements of the section in a list, the Department has reformatted the section and listed the requirements.
In response to IRRC's fourth comment questioning whether any deviation from a straight line would constitute a sag and whether the metal strand floor must be completely rigid, or if some degree of variation or flex is allowable, the Department's response is that the flooring shall be completely rigid and no bend or sag is allowed. Although the Department believes that the current language of the regulation does denote that no bending or sagging is allowed and the language is consistent with and at least as comprehensive as the Federal regulation in 9 CFR 3.6(a)(2)(xii), the Department will add the word ''completely'' before the word ''rigid'' to the language of the amendment.
IRRC's fifth comment related to clarifying the language regarding a draft free area. IRRC suggested the Department should clarify whether this provision applied to the entire primary enclosure or only part of the enclosure area or an attached area accessible to the dog. The draft free area does not apply to the entire primary enclosure. The draft free area provided must be large enough to house all of the occupants of the primary enclosure at the same time and its purpose is to protect the dogs from inclement weather. The Department has added the language ''. . . draft free area that protects the dog(s) from inclement weather and is large enough to hold all occupants . . .''. The Department believes this language along with the current language of the amendment is sufficiently clear.
IRRC's sixth comment with regard to the minimum standards for wire flooring was that the amendment should be consistent with the Federal regulation and use the words ''metal strands'' instead of ''wire.'' The Department agrees and has changed the word ''wire'' to ''metal strand'' throughout the amendment.
Comment: IRRC commented regarding the optional rest board requirement in § 21.24(d). The requirement states ''. . . the solid resting surface shall be constructed of impervious material.'' IRRC commented this provision lacks sufficient detail in two ways: (1) § 21.24(d) should require that rest boards, if used, shall be kept sanitized; and (2) The Department should clarify what types of material are considered to be ''impervious.'' IRRC suggested the Department should state that rest boards, if used, shall be kept sanitary or should reference the sanitation requirements of § 21.29 (relating to sanitation). In addition, IRRC suggested the Department should include examples of impervious materials in the amendment or reference the definition of ''impervious surface'' in the Federal regulations in 9 CFR 1.1 (relating to definitions).
Response: The Department agrees with IRRC's comment and has added language that references the sanitary requirements in § 21.29. In addition, the Department has added language that explains that rest boards shall be constructed of a material that is impervious to ''. . . water or moisture . . . .''
Comment: IRRC commented with regard to four commentators' suggestion that the amendment continue to require a rest board to ensure adequate protection for small dogs, puppies and toy breeds. The commentator's concerns were that the rest boards are a guarantee of a comfortable and safe place to walk or stand for small dogs. IRRC had the following three questions related to this concern:
(1) Is there a certain type of mesh construction for vinyl-coated metal strand flooring that will provide the same or similar protection as a rest board.
(2) If there is, should the regulation specifically require this type of metal strand flooring for enclosures that house small breeds or breeding dogs and their offspring.
(3) If not, should the regulation continue to require rest boards in the enclosures for these dogs?
Response: The Department considered the suggestions of the commentators and decided there should be no specific requirement to provide rest boards for small dogs, puppies and toy breeds. The Department reached this conclusion based on the following reasons:
(1) The language would be inconsistent with the Federal regulation and would be inconsistent with the very reason the United States Department of Agriculture (USDA) and this Department decided to rescind the rest board requirement. The USDA and the Department decided to rescind the rest board requirement based on information that rest boards were causing an increase in health problems and disease among dogs. Dogs were lying in or coming in contact with their own urine and feces, as well as that of other dogs. This exposure was causing health problems and exposing dogs to potentially fatal diseases such as parvo virus. To require rest boards for certain breeds or types of dogs would defeat the very purpose of the amendment.
(2) The language of the current regulation protects small dogs, puppies and toy breeds. The metal strand flooring shall be of construction ''. . . that it does not allow the dog's feet to pass through any opening in the floor and does not otherwise cause injury to the dog.'' In addition, the dog shall be provided with a draft free area that protects them from inclement weather. These measures are intended to promote a healthy, safe, comfortable and humane environment for the dog.
(3) The mesh construction currently being used by kennels has shown itself to be protective of the dog's feet and does not otherwise cause injury to the dog.
(4) The kennel owners shall use the appropriately sized mesh construction metal strand flooring to assure the dog's feet do not pass through the openings and to assure the safety and health of the dog no matter what the size of the dog. A violation of this can lead to prosecution by the Department.
(5) There is no one construction pattern or sized opening that will assure the health and safety of all dogs, no matter their size or breed. Even the same breed of dog grows at different rates and grows to be different sizes. It is impossible to set a standard size opening or pattern of construction for each individual dog breed or type.
(6) The language of the amendment is broad enough to allow flexibility as new patterns or designs of metal strand flooring are introduced into the market place, but still allow for enforcement if metal strand flooring injures a dog in any manner.
(7) The size of the opening, the pattern or construction of the metal strand flooring shall account not only for the size of the dog and the dog's feet but shall also be of sufficient size or construction to allow the feces of the dog to pass through the openings. To require a small opening or tight mesh construction (to simulate a rest board) would lead to the same sanitation and health problems that were presented by the rest board requirement.
(8) To carve out the exception for small dogs, puppies and toy breeds, very specific definitions of breed, size of dog, paw size and age at which each individual breed of dog ceases to be a puppy would have to be formulated. This would lead to an increase in cost of enforcement and a decrease in the efficiency of enforcement. The requirement would add a myriad of extraneous factors which the Department would have to prove in order to successfully prosecute a violation. In addition, the requirement would be more stringent than the Federal regulations.
Given the reasons delineated, the Department believes that the requirement would not lead to an improvement in the health, safety or comfort of dogs sheltered in a primary enclosure having metal strand flooring and that there is no compelling reason to place an additional burden on the regulated community.
Comment: The Pennsylvania Legislative Animal Network (PLAN), the Pennsylvania Federation of Dog Clubs (PFDC), the Federated Humane Societies of Pennsylvania (FSHP) and the Honorable Senator Stewart J. Greenleaf all commented on and made suggestion regarding the following three issues:
(1) Change the word ''wire'' through out § 21.24(d) to ''metal strand'' or ''metal rod.'' PLAN commented that this would be consistent with the Federal Animal Welfare Act and the coinciding regulations in 9 CFR 3.6(a)(2)(xii).
(2) Rest boards should be required for small puppies and toy breeds.
(3) The Department should set a minimum diameter (gauge) for the coated metal strand flooring. Three of these commentators suggested the minimum diameter (gauge) should be 1/8 inch or greater. The commentators required the metal strands to be vinyl coated no matter what the diameter (gauge) of the metal stands.
Response: In response to the first comment, the Department agrees with changing the word ''wire'' to ''metal strand'' to be consistent with the Federal regulation. The Department has changed the word ''wire'' to ''metal strand'' throughout the amendment.
In response to the second comment, the Department disagrees with carving out an exception for small dogs, puppies and toy breeds for the following reasons:
(1) The language would be inconsistent with the Federal regulation and would be inconsistent with the very reason the USDA and the Department decided to rescind the rest board requirement. The USDA and the Department decided to rescind the rest board requirement based on information that rest boards were causing an increase in health problems and disease among dogs. Dogs were lying in, or coming in contact with, their own urine and feces, as well as that of other dogs. This exposure was causing health problems and exposing dogs to potentially fatal diseases such as parvo virus. To require rest boards for certain breeds or types of dogs would defeat the very purpose of the amendment.
(2) The language of the current regulation protects small dogs, puppies and toy breeds. The metal strand flooring shall be of construction ''. . . that it does not allow the dog's feet to pass through any opening in the floor and does not otherwise cause injury to the dog.'' In addition, the dog shall be provided with a draft free area that protects them from inclement weather. These measures are intended to promote a healthy, safe, comfortable and humane environment for the dog.
(3) The mesh construction currently being used by kennels has shown itself to be protective of the dog's feet and does not otherwise cause injury to the dog.
(4) The kennel owners shall use the appropriately sized mesh construction metal strand flooring to assure the dog's feet do not pass through the openings and to assure the safety and health of the dog no matter what the size of the dog. A violation of this can lead to prosecution by the Department.
(5) There is no one construction pattern or sized opening that will assure the health and safety of all dogs no matter their size or breed. Even the same breed of dog grows at different rates and grows to be different sizes. It is impossible to set a standard size opening or pattern of construction for each individual dog breed or type. (6) The language of the amendment is broad enough to allow flexibility as new patterns or designs of metal strand flooring are introduced into the market place, but still allow for enforcement if metal strand flooring injures a dog in any manner.
(7) The size of the opening, the pattern or construction of the metal strand flooring must account not only for the size of the dog and the dog's feet but shall also be of sufficient size or construction to allow the feces of the dog to pass through the openings. To require a small opening or tight mesh construction (to simulate a rest board) would lead to the same sanitation and health problems that were presented by the rest board requirement.
(8) To carve out the exception for small dogs, puppies and toy breeds very specific definitions of breed, size of dog, paw size and age at which each individual breed of dog ceases to be a puppy would have to be formulated. This would lead to an increase in cost of enforcement and a decrease in the efficiency of enforcement. That requirement would add a myriad of extraneous factors which the Department would have to prove to successfully prosecute a violation. In addition, that requirement would be more stringent than the Federal regulations.
Given the reasons delineated, the Department believes that that requirement would not lead to an improvement in the health, safety or comfort of dogs sheltered in a primary enclosure having metal strand flooring and that there is no compelling reason to place that additional burden on the regulated community.
In response to the third comment, after consideration of the official comments, a public meeting on the matter and consideration of testimony entered into the record at a public hearing held to discuss the proposed amendments, the Department finds no compelling reason to exceed the standards of the Federal regulation by requiring the coated metal strands to be greater than 1/8 inch in diameter. The Department holds this belief for the following reasons:
(1) The amendment requires the coated metal strand flooring to ''. . . be constructed of sufficient diameter (gauge) to provide a completely rigid floor area sufficient to support the weight of dog housed in the enclosure such that the metal strand flooring does not bend or sag for the weight of the dog.'' The commentators reason for requesting the use of the term ''metal rod'' was because metal rod denotes a metal strand that is greater than 1/8 of an inch. The commentators believe that by requiring the metal strands to be greater than 1/8 of an inch, the coated metal strand flooring is guaranteed not to bend or sag, or will be less likely to bend or sag and therefore provide a more rigid surface for the dog. The language of the amended regulation addresses the commentators concerns regarding a rigid surface by stating the diameter of the metal strand must be of sufficient diameter (gauge) that it provides a rigid surface and does not allow the metal strand floor to bend or sag under the weight of the dog. There is a zero tolerance for bending or sagging, no matter the size or number of dogs contained in the enclosure. In addition, for the Department to require both greater than 1/8 of an inch and a metal strand of sufficient diameter (gauge) to assure a rigid surface that does not bend or sag would be redundant and could lead to problems with enforcement (that is, the question which standard is it?).
(2) Requiring all coated metal strand flooring to be 1/8 inch or greater in diameter would lead to enforcement problems, greater expense and much more time spent inspecting each individual kennel and prosecuting each violation and would not add any benefit that the current language of the regulation does not already address. It would be impossible for the Department to determine, with a coated metal strand, whether the metal strand itself is 1/8 of an inch or greater in diameter without destroying the vinyl coating on the metal strand. The coating on the metal strand would then have to be replaced to be in compliance with the regulations. In addition, the Department to enforce a violation would have to test all of the enclosures having coated metal strands. The dog law wardens would have to carry metal gauges and those gauges would have to be calibrated and certified as accurate. The accuracy would have to be proven when prosecuting each violation.
(3) Metal strands of 1/8 inch or greater do not guarantee the strength of a metal strand floor. Many factors, such as the construction or pattern of the metal strand flooring, the tensile strength of the material used in the metal strand flooring and the number of welds, determines the actual strength and rigidity of a metal strand floor. The current language of the regulation is broad enough to allow the Department to require stronger metal strand flooring be used in any primary enclosure where the current metal strand flooring is not of sufficient strength to support the weight of the dog with out bending or sagging. The Department, under the current language, does not have to prove diameter (gauge), tensil strength or improper metal strand structure to enforce a violation.
(4) The amendment would be much more stringent than the Federal regulation and would place an undue burden on the regulated community.
The Department will however change the phrase ''wire flooring'' to ''metal strand flooring'' throughout the amendment. The Department does this in response to comments in the proposed stage, testimony at a public hearing and to make the Department's regulation more consistent with the Federal regulation.
Comment: PLAN and PFDC both expressed concern that neither the Committee nor the Board had been given an opportunity to review the final-form regulation before it was printed in the Pennsylvania Bulletin.
Response: This amendment has been under review and discussion for 3 years. The Department formed the Committee to find a solution to the problems caused by the use of rest boards and to try to forge a compromise on the issue of rescinding the rest board requirement. The topic was discussed at numerous meetings of the Board and the Committee. During an August 1999, meeting of the Board, the proposed language of the amendment was read and the Department believed the language was agreed to by members of the Board and Committee. The Department then published notice of the proposed rulemaking at 30 Pa.B. 3660. At the time of publication, the Department was unaware of the disagreement with regard to using the word ''metal strand'' or ''metal rod'' instead of ''wire'' and with regard to the demand to specify a specific diameter (gauge) of the metal strand. The Department, subsequent to publication of the proposed rulemaking, held another public meeting on the proposed rulemaking and a public hearing on the matter. The Department has considered the input received in the official comments to the proposed rulemaking and at the public meeting and hearing on the proposed rulemaking.
Comment: The FSHP commented that except for the issues of changing the word ''wire'' to ''metal strand'' or ''metal rod,'' delineating a specific diameter (gauge) for the ''metal strand'' and continuing to require rest boards for small dogs, puppies and toy breeds, that the other language in the proposed amendment seemed to reflect the concerns of the Committee, particularly the requirement that the wire or rod be coated and that the floors be strong enough so they do not sag.
Response: The Department appreciates the support of the FSHP with regard to the other language contained in the amendment. The Department has changed the word ''wire'' to ''metal strand'' throughout the final-form regulation. In addition, the Department has already set forth and responded to the FSHP's comments regarding delineating a specific diameter (gauge) for the metal strand flooring and its concerns regarding continuing to require rest boards for small dogs, puppies and toy breeds.
Comment: The PFDC had the following comments with regard to the proposed amendment.
The PFDC's first comment was that mandated use of rest boards was to be eliminated.
The PFDC's second comment relates to the minimum standards for kennels using raised flooring in pens. The PFDC stated, ''(A) dog may be sheltered in a primary enclosure on a rod floor where metal strands have a diameter greater than 1/8. All metal flooring shall be of a rod mesh or slatted construction and must be plastic coated, and constructed so the dog's feet shall not be allowed to pass through any opening in the floor and may not otherwise cause injury to the dog. It shall be kept in good repair and shall not sag or bend. The spaces between rods must be either round, square or rectangular in configuration. Support members under a raised kennel floor must be constructed of a material that is impervious to moisture and of a shape that will not impede the passage of feces or urine. Flat support surfaces under a raised floor are not permitted.'' This comment went on to state a definition of ''wire'' and a definition of ''rod.'' Wire was defined as, ''(A) metal strand that has a diameter equal to or less than 1/8.'' Rod was defined as, ''(A) metal strand that has a diameter greater than 1/8 inch.'' The comment states, ''1/8 is the demarcation that the metal working industry uses between welded wire and welded rod.''
The PFDC's third comment was that the Committee was shown samples of coated rod material and felt that requiring this would greatly improve living conditions for the dogs housed on this sturdy and easily cleaned flooring. The PFDC goes on to state the use of this type of flooring was the only reason they agreed to the removal of the current mandated rest boards.
The fourth comment relates to the PFDC's concerns for small puppies and toy breeds of dogs. The PFDC states these dogs would have difficulty balancing on this surface (it is presumed they mean a wire surface) and could be easily injured. The PFDC therefore believes rest boards should continue to be mandated for small puppies and toy breeds. They further comment that the rest boards provided ''. . .should be large enough for all of the dogs in the pen to lay on, made of a material that is easily cleaned and kept free of urine and feces.''
Along with these comments, the PFDC included a glossary of terms that is too large to include in this document. The PFDC did not reference the source of this glossary.
Response: The Department has already set forth and responded to the parts of the PFDC's comments related to changing the term ''wire'' to ''metal rod,'' requiring all metal rod to be 1/8 inch or greater in diameter (gauge) and continuing to require rest boards for small puppies and toy breeds.
With regard to the PFDC's first comment that the amendment was supposed to eliminate the mandated use of rest boards, the Department agrees. The amendment does eliminate the mandated use of rest boards. However, the amendment does not make the continued use of rest boards unlawful. Kennels may continue to use rest boards so long as those rest boards are kept in a sanitary condition in accordance with § 21.29.
In response to the PFDC's comment that ''. . . the spaces between rods must be either round, square or rectangular in configuration,'' the Department disagrees with this language because it is unnecessary, does not allow flexibility for future developments in metal strand floor construction, creates possible enforcement barriers and, without presenting any evidence, excludes all other designs or patterns which may or may not cause harm to a dog's paws or otherwise cause injury to the dog. The current language of the regulation does not allow a construction that would hurt the paws of a dog or otherwise cause injury to a dog. This language allows the Department to take enforcement action with regard to any pattern of metal strand flooring that causes injury to the dog. The Department only has to prove the flooring caused actual injury or harm. The Department has no compelling reason or evidence to suggest that all patterns of flooring other than round, square or rectangular cause injury or harm to dogs and therefore should be excluded from use.
The Department does not agree with adding the PFDC's language regarding support members under a raised kennel floor. This section of the kennel regulations should not be looked at in a vacuum. Section 21.29 requires that primary enclosures shall be kept in a sanitary condition and cleaned as often as is necessary to prevent an accumulation of debris, excreta or a disease hazard. Urine or feces accumulating on a support surface shall be cleaned at least once daily or as often as necessary to prevent accumulation of the excreta or a disease hazard. Flat support surfaces under a raised floor do provide for the most rigid and comfortable surface for the dogs. In addition, round support surfaces would create a rounded uneven floor surface on which the dog would have to stand or walk. Requiring the regulated industry to change all the supports under primary enclosures to meet the requirements espoused by the PFDC would impose a huge cost on the industry and may or may not lead to a more comfortable and healthy environment for the dogs.
In response to the PFDC's comment regarding mandating use of a certain type of flooring which was presented to them at a meeting, the Department disagrees with mandating a specific metal strand flooring. Some kennels will use the type of flooring shown, however there are situations where that type of flooring would not be needed or warranted. The amendment addresses the commentators' concern that the floor be rigid and in addition, allows the necessary flexibility for a kennel owner to use the type of metal strand floor that best fits the size and weight of the dog or dogs in the enclosure. Because dogs come in all different sizes and weights, requiring one type of flooring could lead to less humane and safe conditions for dogs.
Comment: The Honorable Senator Stewart J. Greenleaf commented the proposed amendment appears to represent a step backward in the Department's effort to protect animals from inhumane living conditions. The Honorable Senator Greenleaf further commented that he had spoken to members of the Committee and that they had indicated there was a compromise struck between members representing animal welfare interests and members of the Amish community engaged in dog breeding. Under the compromise, rest boards would no longer be mandated so long as wire were eliminated. The Honorable Senator Greenleaf goes on to note the proposed amendment retains wire but eliminates rest boards. The Honorable Senator Greenleaf questioned whether this is a drafting error or misunderstanding and states he sincerely hopes this is corrected to reflect the Department's commitment to the protection of dogs. The Honorable Senator Greenleaf suggested that ''. . . wire bottom cages should be eliminated in favor of coated metal rod flooring of a diameter (greater than 1/8 inch) that will provide comfort for standing dogs of all sizes, and that rest boards should be retained for small dogs and toy breeds.'' The Honorable Senator Greenleaf further suggested that if wire continues to be allowed, rest boards should remain mandated for dogs of all sizes.
Response: The Department agrees with the Honorable Senator Greenleaf's suggestion that the word ''wire'' should be replaced. The Department has replace the word ''wire'' with ''metal strand'' and the amendment does require all metal strand flooring to be coated. However, for the reasons stated previously, the Department does not agree with the Honorable Senator Greenleaf's suggestions that a minimum diameter (gauge) for the metal strand flooring should be set forth in the amendment or that rest boards should be retained for small dogs and toy breeds.
Comment: The Honorable Senator Noah W. Wenger commented that the proposed amendment would ''. . . make Pennsylvania's regulations consistent with the same changes recently made in Federal regulations.'' He further commented that the amendment were originally enacted to protect the health and safety of dogs and assure their humane treatment and that it has become apparent that rest boards are difficult to keep sanitized at all times, thereby creating a health hazard for dogs. The Honorable Senator Wenger stated he agreed with the Department's proposal to require all metal strand flooring to be vinyl coated and of sufficient diameter so that the floor will not sag or bend. The Honorable Senator Wenger acknowledged the many concerns expressed over this regulation, but, stated he knows the Department will consider them. Therefore, after evaluating the proposed changes, the Honorable Senator Wenger had no objections to them and encouraged IRRC to review the rulemaking favorably.
Response: The Department appreciates the support of the Honorable Senator Wenger. The Department has taken the comments into consideration and has made a number of changes to the proposed amendment based on those comments.
Comment: As noted previously, the Department, in accordance with section 902 of the act (3 P. S. § 459-902), held a public hearing on October 12, 2000, with regard to the amendment. Testimony was taken and written comments were accepted and made part of the record. Following is a list of commentators, their affiliations and a brief synopsis of their testimony.
1. A representative of the American Boarding Kennel Association (ABKA) expressed her concerns that the amended regulation required all kennels to install coated metal strand flooring. Later in the hearing, she added testimony regarding the structure (size) of the metal strand flooring. In her testimony, she stated that the size of a dogs feces does not normally exceed the diameter of their leg or their foot. She suggested the Department put wording in the regulation stating the diameter of the metal strand flooring (meaning the spacing of the metal strands and the mesh construction) must be consistent with the breed of the dog.
2. A representative of the Humane Society of Harrisburg expressed her concurrence with the written testimony submitted by a representative of the FHSP. The FHSP was also an official commentator with regard to the proposed amendment. The FHSP's written testimony asserted that the regulation should be consistent with the Federal regulation and specifically stated the term ''metal strand'' should be used throughout the regulation. In addition, the FHSP stated the regulation ''. . .needs to be understandable and enforceable in the field, so that inclusion of a diameter for the metal strand could be a problem.'' The FHSP's major concern was that the language of the regulation be clear with regard to the mesh and construction of the metal strand flooring in order to assure the size and type of construction is such that it will not cause injury to dogs or puppies of any size or allow their feet to pass through the openings.
3. A representative for PLAN, who is also a member of the Board, offered testimony on the amendment. PLAN was an official commentator with regard to the proposed amendment. Their comments regarding the proposed amendment are listed in this Preamble. PLAN's testimony expressed their concerns regarding the construction of the metal strand flooring. PLAN was concerned that metal strand flooring which was constructed in a manner to prevent the paws of small toy breeds from passing through the metal strand flooring, would also prevent feces and urine from passing through the metal strand flooring. PLAN was concerned this would result in the same health problems caused by rest boards. In addition, the PLAN representative read the written testimony submitted by the PFDC into the record.
4. As noted previously, the PFDC submitted written testimony for the hearing. The PFDC was an official commentator with regard to the proposed regulation. Their comments regarding the proposed amendment are listed in this Preamble. The PFDC's written testimony presented essentially the same comments and concerns expressed in their official comments. The written testimony expressed concern that if rest boards were removed the dogs would have no solid surface, outside the dog boxes or buildings on which to rest. In addition, the PFDC testified the configuration of the floor was a concern to them. The PFDC believes the configuration of the floor for each size of dog, from 1 and 2 pound puppies and small breeds to Great Danes, should be set forth and defined in the regulation. The PFDC testified that it now believes the Department should, ''. . . consider the needs of dogs kept in dog boxes and write rules as to how to best protect them from the elements in all seasons and every kind of weather, especially if now we are going to remove the outside rest boards.'' The PFDC asked the Department to delay any further action on this amendment and to reconvene Committee, ''. . . in order to give all interested parties the opportunity to address their concerns before these rules become final.''
5. Dr. Knauff, a member of the Board and Chairperson of the Committee, representing the research facilities, testified with regard to the regulation. Dr. Knauff testified the rest board requirement was originally added to the amendment to be consistent with the Federal regulation in this area. He went on to state that the USDA, eventually repealed the rest board requirement because they found the rest boards were detrimental to the animals. The dogs would defecate and urinate on the rest boards. The rest boards would not allow the fecal matter or urine to pass through the bottom of the cage and therefore the dogs were laying and standing in the urine and fecal matter, which led to numerous health problems. In addition, many rest boards were made of rubber (because it is impervious to moisture) and kennel owners found that the dogs were eating the rest boards. This led to various health and safety problems. He testified that coated metal strand flooring can be easily cleaned and sanitized with a power sprayer and that his experience indicated dogs have no aversion to resting on a rigid metal strand floor that is properly coated and maintained. Dr. Knauff further testified that the passage of the dog's feet through the coated metal strand flooring has nothing to do with the rest board issue and that the amendment already stated the animal's feet may not pass through the opening in the metal strand flooring, regardless of the material from which it is made. Dr. Knauff testified the Committee had been discussing these issues for 2 years and that given the evidence regarding the health and safety problems presented by the use of rest boards he would not advise the Department to continue to require the mandatory use of rest boards. He stated this was the recommendation of the Committee. Dr. Knauff added testimony later stating that he believed concerns with regard to the size of the spacing between the metal strands or the mesh construction had already been addressed by the amendment.
6. A kennel owner and board member of the Professional Pet Breeders Association testified. He testified that he was at all the meetings (Board and Committee) and thought there was an agreement that rest boards could be removed so long as they were replaced with vinyl or plastic coated strands. He further testified the use of rest boards at his kennel has resulted in dogs resting in their own urine and feces and causes health concerns for the dogs and people handling the dogs. He agreed with the current language of the regulation, which allows the use of rest boards (because he would like to leave them in for some of his dogs) but does not mandate their use.
7. A representative for the Commercial Breeders, who is a kennel owner and also served on the Committee, testified with regard to the regulation. The representative testified the Committee had been discussing this matter for 2 to 3 years and he believed the paramount issue is the health of the dogs and puppies in the pet shops and kennels. He testified dogs in his kennel often seem to prefer the vinyl coated flooring to a solid surface and that many of the dogs use the vinyl coated flooring as a rest area and the solid resting surface as a toilet. With regard to the health of the dogs he testified it is nearly impossible to keep the solid surface (rest board) clean and sanitized at all times. To do so would require people watching the dogs 24 hours-a-day. This leads to various health problems, such as skin problems and sore feet because of the acidity of the urine. In addition, he testified the State's mandatory rest board requirement has created an inconsistency between the State's regulations and the Federal regulations. This inconsistency creates problems for the kennel owners because they shall disregard Federal regulations and recommendations to comply with the State's current regulations. The representative recommended the removal of the mandatory rest board requirement and the addition of the language which provides for a better surface for the animals (that is, vinyl coated metal strand flooring that is rigid and does not sag or bend).
8. A kennel owner commented the rest boards do create a sanitation problem and result in the dogs sitting or resting in their own urine and feces. She testified she is concerned for her dogs and that is why the regulation is important to her.
9. A representative for pet shops, who is also a member of the Dog Law Board and the Committee, testified with regard to the regulation. He testified the rest board requirement should be removed from the Dog Law regulations and agreed with the language mandating vinyl coated metal strand flooring. He emphasized that installing the flooring would be costly to the kennel industry and that it represented a compromise the industry was willing to make, so long as the mandatory rest board requirement currently in place was repealed. He stated it is his experience that dogs sometimes prefer to rest on the coated metal strand flooring as opposed to the rest board. In addition, he opined the regulation as written presents a necessary compromise in some cases between feces or the feet of a dog passing through the metal strand flooring. His conclusion was that the rigid metal strand flooring requirement represented a healthier and safer alternative to rest boards. The representative operates a pet shop and his primary enclosures have metal strand flooring in them. He contended there are no current health or safety problems related to the raising of dogs on metal strand flooring. The representative read a letter from a licensed veterinarian of this Commonwealth stating that in the last 25 years, the veterinarian had not seen or treated one case of injury to a dogs paws at his pet shop. The letter went on to state that since the pet shop had started using the mandated rest boards, the cleanliness and sanitation of the animals and the facility had been compromised. Even with near constant care, the feces and urine of the dogs accumulate on the rest boards. The letter stated this enhances the chances for spreading intestinal parasitic disease and severe life threatening contagious diseases such as parvo virus. In addition, the representative stated the USDA had studied the health and safety problems presented by rest boards and had removed the rest board requirement from their regulations. The representative testified, ''(I)n my experience I have learned that it (the rest board requirement) is putting dogs in danger and the resting boards should be removed as soon as possible.'' The representative also commented with regard to the the PFDC's testimony that the regulation should be delayed. He stated that as a member of the Committee, he had been discussing the issues raised by this regulatory change since 1997, and that during that time the health of dogs has continued to be jeopardized by the rest board requirement and that he believed the regulation had to be put on a ''fast track.''
10. The Board member representing the Pennsylvania Veterinary Medical Association (PVMA) offered written testimony regarding the regulation. In its written testimony, the PVMA stated it supported the regulation as proposed so long as the Department substitutes the words ''metal strand'' for the word ''wire'' throughout the regulation. The written testimony went on to state, ''(R)esting boards promote unsanitary conditions which promote the spread of infectious disease . . . . and . . . coated metal strand material available for cages . . . is appropriate and acceptable for the health of dogs.''
Response: Following is the Department's response to the testimony of each commentator at the public hearing:
1. The Department does not intend, and the language of the amendment does not require, kennels to install coated metal strand flooring. The amendment is intended to address only those kennels that currently have or subsequently install metal strand flooring in the primary enclosure sheltering the dog. The amendment sets the standard for shelters using metal strand flooring in their primary enclosures. With regard to the suggestion, the Department should develop language which states the size of the opening in the metal strand flooring should be consistent with the breed of dog, the Department believes the amendment already addresses that issue and that to add the language ''consistent with the breed of dog'' would only add ambiguity and confusion to the regulation and make it more difficult to enforce.
2. The Department agrees with this testimony. The Department has replaced all references to ''wire flooring'' with the term ''coated metal strand flooring.'' In addition, the Department believes the language of the final-form regulation does protect dogs (including puppies) of all size with regard to the type and construction of the metal strand flooring required. The amendment states, ''(T)he metal strand flooring must be made of mesh construction that does not allow the dog's feet to pass through any opening in the floor and does not otherwise cause injury to the dog.'' Section 2 of the act defines the word ''dog'' in such a manner as to include puppies.
3 and 4. With regard to the testimony offered by commentators 3 and 4 (PLAN and PFDC), the Department has considered this testimony and the official comments previously offered by these commentators and for reasons expressed in the Department's previous response to PLAN's and PFDC's official comments on the proposed rulemaking, the Department believes the final-form regulation addresses their concerns. In addition, the Department disagrees with PFDC's suggestion that the Department delay further action on the amendment. The Department has worked on this amendment for 3 years. During that time the Department established the Committee and held numerous public meetings of both the Committee and the Board to discuss this amendment. Over that 3-year period, the Department has received advise and input from the regulated community, industry members, dog clubs, humane society groups and other interested parties. The Department has considered all of the input and believes this amendment addresses the primary concerns of the groups and more importantly carries out the duty of the Department to provide for the safe, healthy and humane care of dogs in this Commonwealth. In addition, the language of the final-form regulation is consistent with the language of the Federal regulations.
5 through 10. With regard to the testimony offered by commentators 5 through 10, the Department has considered the testimony and believes the final-form regulation addresses the commentator's concerns.
Fiscal impact
Commonwealth The final-form regulation will impose minimal costs and have minimal fiscal impact upon the Commonwealth. The final-form regulation will not require any additional paperwork or impose any additional workload on the Department.
Political Subdivisions The final-form regulation will impose no costs and have no fiscal impact upon political subdivisions.
Private Sector The final-form regulation will impose additional costs on the segment of the regulated community that houses dogs in primary enclosures that have metal strand flooring. That segment of the regulated community will be required to install coated metal stand flooring which complies with the provisions of the amended regulation. Approximately 450 State licensed kennels will be required to comply with this regulatory change. The majority of kennel owners that house dogs in primary enclosures with metal strand flooring, already have a coated metal strand floor of such a diameter and gauge as to bring them into compliance with this regulation. In addition, they will benefit through the lower cost of operation associated with lower rates of disease and morbidity and the removal of the rest boards will lower the cost and time associated with sanitizing the rest boards and the primary enclosures. It should be noted that the regulated community requested amendments be made to this final-form regulation and is supportive of the final-form regulation as amended.
General Public The final-form regulation will impose no costs and have no fiscal impact on the general public. The general public should benefit from the final-form regulation because animals will be healthier and safer and there should be a reduced cost to the industry.
Paperwork Requirements
The final-form regulation will not result in an appreciable increase of paperwork. The Department has already developed the appropriate forms and procedures to administer the final-form regulation.
Contact Person
Further information is available by contacting the Department of Agriculture, Bureau of Dog Law Enforcement, 2301 North Cameron Street, Harrisburg, PA 17110-9408; Attn: Richard Hess (717) 787-4833.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 10, 2000, the Department submitted a copy of the notice of proposed rulemaking published at 30 Pa.B. 3660, to IRRC and to the Chairpersons of the House Agriculture and Rural Affairs Committee and the Senate Agriculture and Rural affairs Committee for review and comment.
Under section 5(c) 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 this final-form regulation, the Department has considered the comments received from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), the final-form regulation was deemed approved by the House and Senate Committees on February 20, 2001. Under section 5.1(e) of the Regulatory Review Act, IRRC met on March 8, 2001, and approved the final-form regulation.
Findings
The Department finds that:
(1) Public notice of its intention to adopt the regulation 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 their attendant regulations in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments received were considered.
(3) The modifications that were made to the regulation in response to comments received do not enlarge the purpose of the proposed amendment published at 30 Pa.B. 3660.
(4) A public hearing was held as required by section 902 of the Dog Law.
(5) The modifications that were made to this amendment in response to testimony presented at the public hearing do not enlarge the purpose of the proposed regulations published at 30 Pa.B. 3660.
(6) The adoption of the amendment in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under authority of the authorizing statute, orders the following:
(a) The regulations of the Department, 7 Pa. Code Chapter 21, are amended by amending § 21.24 to read as set forth in Annex A.
(b) The Secretary shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Secretary shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(4) This order shall take effect upon publication in the Pennsylvania Bulletin.
SAMUEL E. HAYES, JR.,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 31 Pa.B. 1647 (March 24, 2001).)
Fiscal Note: Fiscal Note 2-132 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 7. AGRICULTURE
PART II. DOG LAW ENFORCEMENT BUREAU
CHAPTER 21. GENERAL PROVISIONS; KENNELS; LICENSURE; DOG-CAUSED DAMAGES
KENNELS--PRIMARY ENCLOSURES § 21.24. Shelters.
(a) Dogs shall be provided access to shelter which protects them against inclement weather, preserves their body heat and keeps them dry. Housing facilities for dogs shall be constructed to provide for the health and comfort of the animals.
(b) Shelter shall be provided for dogs kept outdoors. Sufficient clean bedding material or other means of protection from the weather shall be provided.
(c) If dog houses with tethers are used as primary enclosures for dogs kept outdoors, the tethers used shall be placed or attached so that they cannot become entangled with other objects or come into physical contact with other dogs in the housing facility, and to allow the dog to roam to the full range of the tether. The tether shall be of a type commonly used for the size dog involved and shall be attached to the dog by means of a well-fitted collar that will not cause trauma or injury to the dog. The tether shall be at least three times the length of the dog as measured from the tip of its nose to the base of its tail and allow the dog convenient access to the dog house and food or water container.
(d) A dog may be sheltered in a primary enclosure having metal strand flooring provided the following conditions are met:
(1) The metal strand flooring is coated with a vinyl type coating.
(2) The coated metal strand flooring shall be kept in good repair.
(3) The coated metal strand flooring shall be made of mesh construction that does not allow the dog's feet to pass through any opening in the floor and does not otherwise cause injury to the dog.
(4) The coated metal strand flooring shall be constructed of sufficient diameter (gauge) to provide a completely rigid floor area sufficient to support the weight of dogs housed in the enclosure so that the metal strand floor does not bend or sag from the weight of the dogs.
(5) The dogs shall be provided with a draft free area that protects the dogs from inclement weather and is large enough to hold all the occupants of the primary enclosure at the same time comfortably.
(e) Coated metal strand flooring shall be installed by June 29, 2001. Coated metal strand flooring shall be installed prior to the removal of a solid resting surface. If a solid resting surface is provided, the solid resting surface shall be constructed of material that is impervious to water or moisture and shall be kept in a sanitary condition in accordance with § 21.29 (relating to sanitation).
(f) A dog may not be housed on a temporary or permanent basis in a drum or barrel dog house, regard-less of the material of which the drum or barrel is constructed.
[Pa.B. Doc. No. 01-542. Filed for public inspection March 30, 2001, 9:00 a.m.]
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