NOTICES
Notice of Comments Issued
[39 Pa.B. 7075]
[Saturday, December 12, 2009]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 645.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
IRRC Close of the Public Comments Reg. No. Agency/Title Comment Period Issued 7-437 Environmental Quality Board 10/26/09 11/25/09 Lead and Copper Rule Short Term Revisions
39 Pa.B. 5581
(September 26, 2009)
16-44 Department of State 10/26/09 11/25/09 Schedule of Civil Penalties—Chiropractors
39 Pa.B. 5580
(September 26, 2009)
16A-4318 State Board of Chiropractic 10/26/09 11/25/09 Continuing Education Violations
39 Pa.B. 5594
(September 26, 2009)
2-149 Department of Agriculture 10/26/09 11/25/09 Pesticides
39 Pa.B. 5564
(September 26, 2009)
2-170 Department of Agriculture 10/27/09 11/30/09 Canine Health Board Standards for Commercial Kennels
39 Pa.B. 5315
(September 12, 2009)
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Environmental Quality Board
Regulation #7-437 (IRRC #2790)
Lead and Copper Rule Short Term Revisions
November 25, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the September 26, 2009 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Environmental Quality Board (Board) to respond to all comments received from us or any other source.
1. Section 109.1103. Monitoring requirements.—Need; Fiscal impact; Clarity.
Subsection (e)—Reduced monitoring.
The Preamble to the proposed rulemaking states that certain provisions of § 109.1103(e) are more stringent than the Federal rule on which this proposal is based. The specific provisions are: §§ 109.1103(e)(1)(i)(B) and (C); 109.1103(e)(1)(ii)(B); and 109.1103(e)(3). The Board has explained that these provisions are more protective of the public health than the Federal rule. We ask the Board to explain why the Federal rule is not sufficient to protect the health of the citizens of this Commonwealth.
In addition, a commentator has questioned if these provisions increase the cost for compliance for public water systems. We ask the Board to quantify the costs associated with the provisions that are more stringent than the Federal rule.
Subsection (g)—Sample site location plan.
Subsection (g)(2)(iv) pertains to site selection for community and nontransient noncommunity facilities that operate continuously. The second sentence of this subsection states the following: ''These systems shall collect as many first-draw samples from appropriate taps as possible and identify sampling times and locations that would likely result in the longest standing time for the remaining sites.'' (Emphasis added.) This sentence is vague because it does not establish a binding norm that could be evenly applied to all members of the regulated community and enforced by the Department of Environmental Protection in a uniform manner. We recommend that the sentence be amended to provide more definite parameters for testing.
2. Section 109.1104. Public education and notification.—Implementation procedures; Need; Clarity.
Subsection (a)(2)(i)(B)
This subsection pertains to the delivery of education materials. It is being amended to read as follows:
The water supplier shall deliver education materials meeting the content requirements of paragraph (1) to local public health agencies, such as the county or State Health Department, even if they are not located within the water system's service area, along with an informational notice that encourages distribution to all the potentially affected consumers. The water supplier shall contact the local public health agencies directly by phone or in person. The local public health agencies may provide a specific list of additional community based organizations serving target populations which may include organizations outside the service area of the water system. If a list is provided, the water supplier shall deliver education materials that meet the content requirements of paragraph (1) to all the organizations on the list.We have three concerns. First, the term ''local public health agencies'' is unclear. We recognize that the Preamble to the rulemaking lists the agencies that must be contacted and that additional guidance will be provided by the Department. However, as noted above, regulations establish binding norms and also have the full force and effect of law. We recommend that the term either be defined or that the final-form regulation include a reference to a specific guidance document that lists the agencies that must be contacted. This term also appears in Subsection (a)(2)(i)(D).
Second, what is the need for contacting local public health agencies, even if they are not located with the water system's service area? This requirement also appears in Subsection (a)(2)(i)(D).
Third, we find the third and fourth sentence of this subsection to be problematic. Under these sentences, the Board is delegating its rulemaking authority to local public health agencies and members of the regulated community will be required to comply with the additional requirements. This approach does not establish a binding norm that could be applied evenly to the regulated community. If the Board believes that other community based organizations should be contacted, those organizations should be listed in the guidance document.
Subsection (a)(2)(i)(D)
This subsection requires water suppliers to make a good faith effort to reach certain organizations. It states that the good faith effort ''may'' include requesting information from a local public health agency. The use of the word ''may'' is problematic because it is nonregulatory language which indicates that this provision is optional. It is inappropriate to include optional provisions in a regulation. If the Board believes this provision is necessary, it should change the word ''may'' to ''shall.'' If it is not necessary, the provision should be deleted from the regulation.
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Department of State
Regulation #16-44 (IRRC #2791)
Schedule of Civil Penalties—Chiropractors
November 25, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the September 26, 2009 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of State (Department) to respond to all comments received from us or any other source.
House Professional Licensure Committee comment—Protection of the public health, safety and welfare; Clarity.
In a letter dated October 21, 2009, the House Professional Licensure Committee commented on the following issues:
• How were the amounts of the new civil penalties determined?
• Is the licensee sanctioned for falsifying a biennial registration as well as failing to comply with the continuing education requirements?
• The Department should explain the failure to address a sanction for a second offense relating to the violation for ''practice on a lapsed license in compliance with CE and malpractice insurance requirements.''
• How is a licensee monitored for compliance after a civil penalty is imposed for a deficiency in continuing education?
We will review the Department's responses to these issues in our consideration of whether the final-form regulation is in the public interest.
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State Board of Chiropractic
Regulation #16A-4318 (IRRC #2792)
Continuing Education Violations
November 25, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the September 26, 2009 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Chiropractic (Board) to respond to all comments received from us or any other source.
1. House Professional Licensure Committee comment—Protection of the public health, safety and welfare; Clarity.
In a letter dated October 21, 2009, the House Professional Licensure Committee commented on the following issues:
• Is the licensee sanctioned for falsifying a biennial registration as well as failing to comply with the continuing education requirements?
• The Board should explain how a licensee makes up a continuing education deficiency after renewing a license.
• How is a licensee monitored for compliance after a civil penalty is imposed for a deficiency in continuing education?
We will review the Board's responses to these issues in our consideration of whether the final-form regulation is in the public interest.
2. Certification to use adjunctive procedures.—Need; Reasonableness; Clarity.
The second sentence of Section 5.77(d) states:
Within 6 months after the end of the renewal period during which the required amount of continuing education was not completed, the licensee shall make up the deficiency and provide proof of attendance at continuing education courses as required under section 507 of the act (63 P. S. § 625.507) and § 5.14 (relating to certification to use adjunctive procedures) for the previous biennial registration period. (Emphasis added.)Section 5.14 does not require continuing education courses ''for the previous biennial registration period.'' The portion of Section 5.14 that addresses continuing education is Paragraph (b)(3) which states:
An applicant for certification to use adjunctive procedures shall present evidence of one of the following qualifications:* * * * * (3) Utilization of adjunctive procedures in the practice of chiropractic continuously since December 16, 1983. An application for certification under this subsection shall have been received by the Board by September 1, 1988. To maintain this certification, the licensee shall have completed, by September 30, 1988, 36 hours of additional study in the use of adjunctive procedures as part of the continuing education required for the 1988 biennial registration. (Emphasis added.)Section 5.14 only addresses the 1988 biennial registration. It does not place continuing education requirements on subsequent biennial registrations. The Board should review and amend the second sentence of Subsection (d) as appropriate.
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Department of Agriculture
Regulation #2-149 (IRRC #2793)
Pesticides
November 25, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the September 26, 2009 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of Agriculture (Department) to respond to all comments received from us or any other source.
1. Sections 128.2. Definitions.; 128.3. Fees.; 128.10. Licensing requirements for pesticide dealer.; and 128.12. Licensing of a pesticide dealer manager.—Consistency with statute.
Pesticide dealer manager
The statute defines ''pesticide dealer'' at 3 P. S. § 111.24(32) and sets forth details of pesticide dealer licensure at 3 P. S. § 111.32, including a $10 annual fee. The Department's existing regulation includes the $10 fee in § 128.3(a) and specifies recordkeeping requirements in § 128.11.
The Department is proposing to add a category of licensure of ''pesticide dealer manager.'' Section 128.2 defines the term ''pesticide dealer manager.'' Paragraph 128.3(a)(1) sets an annual fee of $15 for licensure. Section 128.10 specifies further licensure requirements, including Subsection (b) which requires each pesticide dealer to employ at least one pesticide dealer manager. Section 128.12 sets forth details for licensing a pesticide dealer manager.
We have two concerns. First, since the statute only addresses ''pesticide dealer,'' how is it consistent with the statute to create in regulation the new licensure category of ''pesticide dealer manager''? Second, why does the $15 annual fee for ''pesticide dealer manager'' exceed the $10 annual fee for ''pesticide dealer,'' as contained in 3 P. S. § 111.32(b)?
2. Section 128.53. Recordkeeping.—Need; Protection of the public welfare; Clarity.
Personal identification records
Subsection (b) requires the pesticide application business to keep and maintain copies of personal information, such as driver's licenses, valid passports, military identification or Social Security cards. It is not clear what purpose this requirement serves under the Pennsylvania Pesticide Control Act of 1973. Also, if a pesticide application business is required to maintain these records, how must the records be secured to protect against identity theft? The Department should explain the need to copy and maintain these personal identification records. In addition, it is unclear whose records the business is required to maintain: employees, management or both. The final-form regulation should clarify this issue.
3. Section 128.85a. Ornamental or turf application notification.—Protection of the public health, safety and welfare; Reasonableness; Need; Clarity.
Notification
The notification process in Subsection 128.85a(a) raises five concerns. First, the written request for notification process in Paragraph (a)(1) is not clear. Does ''a person'' refer to the person receiving the pesticide application, a neighboring property owner or any other person who would want notification from local pesticide businesses? Also, how would a person know that he or she is required to submit a written request for notification? What responsibility does the pesticide application business have if that request is not made? Can the pesticide be applied if the list of property owners required under Subparagraph (a)(1)(i) is not provided?
Second, Subparagraph (a)(1)(i) is confusing regarding to whom notice should be given. It is not a complete sentence. In addition, the provision itself is circuitous, as it is unclear what is the actual ''subject'' of the provision. Is it the notice itself or the owners of the relevant properties? Also, how would the pesticide business know or verify that the list provided is complete and accurate?
Third, under Subparagraph (a)(1)(ii) it is not clear what is implied by the statement ''The notification requirement becomes effective 7 days following receipt of the request. . . .'' What was the status of the notification requirement prior to the seven days?
Fourth, Paragraph (a)(2) only requires a 12-hour notice ''upon receiving a written request at least 7 days prior to the application date.'' Would the 12-hour notice be required if a written request was received less than seven days before the date of application?
Finally, Paragraph (a)(3) requires the application business to provide a copy of pesticide labels within ten days of receiving a request for them. The ten-day period could allow the application of the pesticide before the labels are provided. There are many circumstances that could raise concerns with the application of a pesticide by a neighbor, including its effects on pregnancies, children, well water and pets. The ten-day period may not allow a neighbor sufficient time to question the application of a pesticide.
We recommend that the Department review Subsection (a) so that it provides a logical notice process and sufficient notice to neighbors who may be concerned about the application of a pesticide near their dwelling.
Mutual border/contiguous lands
Subparagraph (a)(1)(i) would require the written request for notification to list the ''premises sharing a mutual border.'' A commentator states this could be onerous for a large property owner. The commentator notes the existing definition of ''land contiguous to a restricted use pesticide application site'' excludes premises located more than 100 feet from the application site. The Department should explain why all premises sharing a mutual border must be notified.
In addition, Paragraph (a)(2) requires constructive notice of application on ''contiguous lands.'' Is this different than ''premises sharing a mutual border''? We recommend that the Department use one clearly defined term in Subsection (a).
Request for notification shall expire on December 31
Subsection (b) states that ''A request for notification made under this subchapter shall expire on December 31 in the year in which it is made.'' We question the practicality of this deadline. If a person needs to exterminate pests in December, for example, why should the notice request expire in just a few weeks, particularly after the applicant did all of the work to determine who must be notified? Would the applicant have to re-apply on January 1st? We recommend that the Department consider a different method of expiration, such as twelve months after the written request is received.
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Department of Agriculture
Regulation #2-170 (IRRC #2785)
Canine Health Board Standards for Commercial Kennels
November 30, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the September 12, 2009 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of Agriculture (Department) to respond to all comments received from us or any other source.
1. General—Statutory authority; Legislative intent; Fiscal impact; Need; Consistency with statute.
Fiscal impact
Several commentators, including legislators, expressed concerns over the fiscal impact of this proposed regulation on both the Department and the regulated community. The Preamble of the proposed regulation provides no cost estimates but it does refer to the Department's estimates in the Regulatory Analysis Form (RAF) that was submitted with this proposed regulation. In item #17 on page five of the RAF, the Department offers a total cost estimate of $12,955 for commercial kennels. In contrast, the Pennsylvania Farm Bureau (PFB) stated that the total costs for the required upgrades could range from $200,000 to over $1 million.
Another aspect of increased costs that is not mentioned in the RAF is kennel staff costs. The statutory requirements for flooring and exercise areas do not allow kennel operators to rely on wire floors to allow for easy removal of dog wastes and fluids. In order to clean and maintain the dogs, and floors or flat surfaces in primary enclosures and exercise areas, there may be a need for additional staff at kennels which will increase costs. The Department needs to include these factors in its cost estimates for commercial kennels.
The feasibility and fiscal impact of certain provisions in the proposed regulation, particularly those in the areas of ventilation and lighting, are of particular concern. As expressed by Representative Michael K. Hanna in his letter dated October 27, 2009, and by Senator Mike Brubaker in his remarks on the Senate floor urging his colleagues to support the legislation that became Act 119 (see Senate Journal, October 8, 2008, p. 2636), the intent of the 2008 amendments to the Dog Law was that commercial kennels would continue to operate successfully in Pennsylvania.
The Department needs to estimate the full economic impact of this proposed regulation.
Rulemaking authority
Senator Brubaker, by letter dated October 27, 2009, and Representatives Sam Smith, John Maher (Republican Chairman of the House Agriculture and Rural Affairs Committee), Jerry Stern, Sam Rohrer, Scott Hutchinson, Jim Cox, Gordon Denlinger, Mark Keller, David Millard, Tina Pickett, Jeffrey Pyle, Michele Brooks, Michael Fleck, Carl Walker Metzgar, Richard Stevenson and Martin Causer via a joint letter dated October 27, 2009, (Representatives' comments) submitted objections and recommendations on the proposed regulation. Both Senator Brubaker and the Representatives' comments expressed concern with the roles of the Department and Canine Health Board (Board) in the development of this proposed regulation and in receiving comments on the rulemaking.
Section 221(g) of the Dog Law (Law) (3 P. S. § 459-221(g)) gave the Board the task of issuing guidelines. However, it placed the task of issuing the regulation with the Department. Section 902 of the Law gives authority to the Secretary of Agriculture to promulgate rules and regulations to carry out the provisions and intent of the statute. It is clear that the Department is the sole entity with the authority to promulgate and enforce regulations. Unlike some other boards, such as the Environmental Quality Board which is empowered with rulemaking authority by statute, Act 119 did not give such authority to this Board. The Department needs to provide a statement with the final-form regulation that fully explains its authority in rulemaking and the functions of the Board.
Public interest
Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b) directs the Independent Regulatory Review Commission (Commission) to determine whether a regulation is in the public interest. When making this determination, we consider criteria relating to economic or fiscal impact and reasonableness. To make that determination, the Commission must analyze the text of the Preamble and proposed regulation and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide in the Regulatory Analysis Form pursuant to Section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)).
This proposed rulemaking is a comprehensive set of provisions under the Law. The Preamble included with the proposal does not provide an adequate description of the numerous sections of the rulemaking and the rationale behind the language. Without this information, this Commission is unable to determine if the regulation is in the public interest. In the Preamble submitted with the final-form rulemaking, the Department should provide more detailed information, including a description of the language proposed for each section of the regulation and why the language is required.
2. Section 28a.1. Definitions.—Reasonableness; Possible conflict with other regulations; Implementation procedure; Clarity.
The definition of ''excessive light'' is vague. There is no indication of what levels and types of light would be excessive or cause harm or discomfort to dogs. The Department needs to clarify the purpose and intent of this definition and its related provision at Section 28a.3(1)(iii). Depending on how this term is defined, interpreted or applied, Sections 28a.3(1)(i) and (ii), relating to dogs' required exposure to natural light, may be in conflict with Section 28a.3(1)(iii) if natural sunlight is determined to be excessive. If the intent is that primary enclosures should provide shade from direct light regardless of whether it is natural or artificial, then such a statement should be included in the final-form regulation and this definition could be deleted.
3. Section 28a.2. Ventilation.—Statutory authority; Fiscal impact; Need; Reasonableness; Consistency with statute; Feasibility; Implementation procedure.
Ambient air temperature
Please explain the authority for the Department to require, in Paragraph (1), that the ambient air temperature be kept below 85° F. Section 207(h)(7) of the Law reads: ''The Canine Health Board shall determine auxiliary ventilation to be provided if the ambient air temperature is 85 degrees F or higher.'' Furthermore, Senator Brubaker expresses concern that the definition of ''mechanical ventilation'' is ''subjective enough that an inspector may have the ability to demand air conditioning.'' While the Department has the authority to require mechanical ventilation when the temperature goes above 85 degrees, the Senator asserts that the Department does not have the authority to require temperature reduction. We agree.
Based upon a meeting with Department staff, we understand that air conditioning was not intended to be required by this proposed regulation. This provision should be amended in the final-form regulation to clearly state the Department's intent. Also, what is the Department's authority to require dogs to be removed from a facility when the ambient air temperature goes above 85 degrees?
Finally, numerous commentators assert that there are situations where it is important for the ambient air temperature to be well above 85 degrees in certain portions of a kennel. For instance, numerous commentators indicated that newborn puppies cannot regulate their own body temperature until they are 10-14 days old and need ambient air temperatures in the mid 90s. However, this proposed regulation appears to prohibit the necessary temperatures in this circumstance. The Department should add a provision that would address these concerns.
Recirculation of air
Subsection (8)(i) requires a kennel to ''. . . provide between 8-20 air changes of 100% fresh air per hour. . . .'' (Emphasis added.) However, Subsection (11) requires a specific type of air filter ''when employing mechanical means of ventilation and recirculating air. . . .'' (Emphasis added.) It is unclear how a kennel would be able to recirculate air, while using 100% fresh air for its air changes. These provisions appear to conflict with one another. The Department should clearly indicate how these provisions work together. If they do conflict, these provisions should be amended in the final-form regulation to reflect the Department's intent with regard to the circulation of air.
In addition, compliance with the requirement for ''100% fresh air'' in the air changes could be prohibitively expensive. We question the fiscal impact and feasibility of this requirement.
Paragraphs (2) and (3)
Commentators, including the Pennsylvania Veterinary Medical Association, state that the humidity levels established in this proposed regulation are not always attainable, unless the kennel is hermetically sealed. They further state that these humidity levels required by the regulation may not necessarily be the most beneficial to the dogs. The Department should justify how these humidity levels can reasonably be attained and how these are the best levels for the benefit of dogs.
Paragraph (4)
Commentators assert that the ammonia levels required in Subsection (4) are too difficult to achieve and the technology for monitoring ammonia at this level does not exist. How did the Department arrive at the 10 ppm requirement for ammonia? How is this level achievable for kennels, in light of commentators' assertions that it is extremely difficult to monitor it at this level?
Paragraph (5)
This paragraph establishes requirements with regard to carbon monoxide, including the installation of carbon monoxide detectors. Senator Brubaker and the Representatives' comments both assert that the authority to establish these requirements is lacking and the entire paragraph should be deleted. The Department should set forth its authority to require carbon monoxide monitoring or it should delete these provisions. Similar concerns apply to Paragraphs (7) (relating to particulate matter) and (10) (relating to odor, stale air, moisture condensation or lack of air flow).
Paragraph (6)
This paragraph requires the kennel to contact the Bureau of Dog Law ''in the event of a mechanical system malfunction.'' This provision lacks clarity. First, in what time frame should this contact be made? Second, how should a kennel owner contact the Bureau if a malfunction occurs during the night or weekend when the Bureau is not open? Will the Bureau establish a 24-hour contact number? These items should be clarified and set forth in the final-form regulation.
Paragraph (8)
The Representatives' comments raised several questions with regard to this paragraph. These questions include calculation methods and several clarity concerns. We will evaluate the Department's response to these questions in our consideration of whether the final-form regulation is in the public interest.
Subparagraph (8)(v)
This subparagraph states that the ''Department may hire or consult with an engineer to recommend improvements be made to kennels to meet compliance. . . .'' Senator Brubaker and the Representatives' comments both assert that the Department is not authorized to hireor consult with an engineer to inspect kennels. They further state that only State Dog Wardens and employees of the Department are authorized to inspect kennels and enforce provisions of the Law. The Department should state its authority to allow engineers to inspect a kennel under this subparagraph, or this provision should be deleted.
Paragraph (9)
This paragraph lists several conditions that are associated with poor ventilation. However, numerous commentators indicate that poor ventilation is not the only cause of these conditions. The Department should clearly explain why it is appropriate to tie these symptoms to poor ventilation or this subsection should be deleted.
4. Section 28a.3. Lighting.—Statutory authority; Fiscal impact; Need; Reasonableness; Consistency with statute; Feasibility; Implementation procedure; Clarity.
Natural light
Senator Brubaker and the Representatives' comments assert that any reference to natural light must be removed from this regulation, including Subparagraphs (1)(i), (ii) and (v). They point out that the Law specifically states, at Section 207(h)(8), that dogs should be provided with natural or artificial light.
What is the Department's authority to require a kennel to provide both natural and artificial light to its dogs? Another question is why would it be necessary to have natural light inside the kennels if the dogs have access to outdoor exercise areas? These should be clearly explained in the final-form regulation.
Excessive lighting
Subsection (1)(ii) sets a minimum amount of external windows and skylights in order to aid in meeting the lighting standards in this section. However, Subsection (1)(iii) states, ''Dogs shall be protected from excessive light'' (Emphasis added). Excessive light is defined as ''direct, undiffused light, from either the sun or a lighting fixture placed in a manner that the light is shining directly into a primary enclosure of a dog.'' As noted earlier, it appears that these two provisions conflict with each other. A dog is not to be exposed to ''excessive light,'' yet a kennel will be required to allow sunlight to beam into the rooms where dogs are housed. The Department should clearly explain its intent and amend the regulation accordingly.
''Full spectrum lighting''
Senator Brubaker suggests that this term, used in Subsections (1)(vi) and (2)(i), be defined. We agree.
Subparagraph (1)(ii)
The first sentence of this subparagraph is long and confusing. There are two questions. First, regarding the phrases ''within each room where dogs are housed may not be less than 8% of the floor space,'' it is unclear which floor space is being referenced. Is it the total floor space of each room or the whole kennel? Second, does the Department intend to apply the ''external opening'' requirement to existing kennels? If so, the Department should clearly explain its authority to retroactively apply this standard to kennels that were in place and operating prior to the effective date of this regulation. The Department should also examine the fiscal impact of this requirement.
Subparagraph (2)(i)
This subsection requires the kennel to provide ''full spectrum lighting between 50-80 foot candles'' during the daytime. Commentators have expressed concern that this would be too bright for the dogs. Why must lighting be 50-80 foot candles during the day? How did the Department determine this was reasonable? Is this requirement based on animal husbandry practices, as required by the Law?
Subparagraph (2)(iv)
Under this subsection, lighting sources ''may not have a visible flicker.'' It is not clear how the elimination of flickering lights will benefit dogs. Further, Senator Brubaker asserts that the prohibition of a ''visible flicker'' is not in the scope of the Law and should be removed from this regulation. The Department should explain its authority for banning lighting with a ''visible flicker'' or delete the provision. If the Department does provide adequate statutory authority, it should explain how the prohibition of flickering lights benefits dogs.
5. Section 28a.4. Flooring.—Consistency with statute; Reasonableness; Clarity.
Identifiable options for flooring in primary enclosures
Section 207(i)(3) of the Law (3 P. S. § 459-207(i)(3)) provides detailed specifications for the required flooring in primary enclosures. Section 207(i)(3)(iii) states that ''additional flooring options that meet the provisions of subparagraph (i) may be approved by the Canine Health Board.'' Given the statute, the structure and provisions of this section are confusing.
In order to clearly delineate the primary enclosure flooring options, the reference to the statutory requirements in Section 207(i)(3) of the Law should be listed by itself in one subsection as the initial flooring option provided by the statute. A second subsection could set forth the requirements for the option of solid flooring. In this format, provisions such as those in Subsections (2) and (3) of this proposed regulation would be moved to be subparagraphs in the second subsection on solid floors.
This section should also include a process and procedure whereby kennels could submit proposals for new flooring options to the Department and Board for review and approval in the future. This would invite technological innovation which could reduce costs while improving the health and welfare of dogs. It would also allow for the full realization of the statutory provision allowing for additional floor options.
Vague terms and phrases
In Paragraph (4), what is considered ''high thermal conductance''? The intent is unclear. Another concern is in Paragraph (6). Who would determine if a floor surface provides ''the dogs with good footing''? How will such a standard be measured and enforced? The Department needs to re-write these subsections as requirements that can be easily measured, assessed and enforced, or delete them from the final-form regulation.
Paragraph (7) is also vague and it is unnecessary. The insertion of the words ''and may be subject to microbial assessment'' serves no purpose because no standard is established. The statutory basis for this vague phrase should be explained. As written, this is non-regulatory language because the regulated community is not notified when a ''microbial assessment'' will be required, how it will be performed, or what standard will be enforced. This should be set forth in the final-form regulation or this phrase should be deleted.
6. Miscellaneous—Reasonableness; Clarity.
Nonregulatory language
The first sentences in Sections 28a.2, 28a.3 and 28a.4 are nonregulatory language and should be deleted. For example, the first sentence in Section 28a.2 reads: ''Proper ventilation helps ensure that dogs are healthy and not stressed.'' This is not a prescriptive standard, directive or requirement, and therefore, it serves no purpose in the text of a regulation. It is a supportive statement which belongs in the narrative in the Preamble of a rulemaking.
The term ''satisfactory'' in Section 28a.2(8)(iv) also is nonregulatory language and should be amended.
Applicable codes
Sections 28a.2(12), 28a.3(3) and 28a.4(5) in this proposed regulation state that the ventilation systems, lighting and floors and drains ''must comply with the latest edition of applicable codes.'' To which codes are these subsections referring? To properly notify the regulated community of the standards required for compliance, the final-form regulation should specifically identify the ''applicable codes.''
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 09-2295. Filed for public inspection December 11, 2009, 9:00 a.m.]
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