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RULES AND REGULATIONS

Title 7—AGRICULTURE

DEPARTMENT OF AGRICULTURE

[ 7 PA. CODE CHS. 28 AND 28a ]

Commercial Kennel Canine Health Regulation

[40 Pa.B. 6903]
[Saturday, November 27, 2010]

 The Department of Agriculture (Department) rescinds Chapter 28 and adopts Chapter 28a (relating to commercial kennel canine health regulations) to read as set forth in Annex A.

Statutory Authority

 The Department adopts this final-form rulemaking under the Dog Law (act) (3 P. S. §§ 459-101—459-1205) and the specific authority in sections 221(g) and 902 of the act (3 P. S. §§ 459-221(g) and 459-902).

 The Canine Health Board (Board), created under section 221 of the act, issued temporary guidelines published at 39 Pa.B. 310 (January 17, 2009). As required by section 221(g) of the act, those temporary guidelines were published by the Department as a proposed rulemaking at 39 Pa.B. 5315 (September 12, 2009).

 More specifically, section 221(f) of the act charges the Board and the Department with the duty to determine standards and promulgate regulations to provide for the health and well being of dogs in the specific areas of ventilation, auxiliary ventilation, humidity and ammonia levels, lighting and flooring in commercial kennels as set forth in section 207(h)(6)—(8) and (i)(3) of the act (3 P. S. §§ 459-207(h)(6)—(8) and (i)(3)) and section 221(f) of the act.

 The Department, under its general authority in section 902 of the act and under the specific duty and authority in section 221(g) of the act, adopts Chapter 28a.

Purpose of the Final-Form Rulemaking

 The final-form rulemaking is required to effectuate the edicts of the act and the duty of the Board and the Department to determine and establish standards, based on animal husbandry practices, to provide for the welfare of dogs under sections 207(h)(7) and (8) and (i)(3) and 221(f) of the act. The final-form rulemaking establishes standards for ventilation, auxiliary ventilation, humidity and ammonia levels, delineates lighting requirements for either natural or artificial lighting, or both, requires carbon monoxide detectors in some commercial kennels and sets forth the flooring standards required by the act, as well as establishing parameters for additional flooring options. The standards are based on consultation, input and verification from experts such as engineers that design and build kennel housing facilities, architects, animal scientists from the Pennsylvania State University (PSU) and veterinarians from the Board and the Department. The Department also consulted the minutes of Board meetings, did its own research and relied upon animal, including canine, health studies. In addition, the Department met or had discussions with a group of kennel owners from the Pennsylvania Professional Dog Breeders Association and their lobbyist, the president and CEO of the American Canine Association and a senior field representative from the American Kennel Club (AKC).

Comment and Response

 The final comment and response document is over 400 pages in length. Therefore, the Department set the comment and response document forth as a separate document, as it would have been impossible to include it in this preamble. The comment and response document is posted on the Department's web site and will be sent to interested persons upon written request.

Summary of Overall Changes

 The major features of and changes to the final-form rulemaking are summarized as follows.

 The Department agrees that the Board crafted guidelines, promulgated as a proposed rulemaking by the Department with the intent to insure the health and welfare of dogs housed in commercial kennels, including that the kennels remained ''sufficiently ventilated at all times when dogs are present'' to ''determine auxiliary ventilation to be provided'' if the air temperature reaches or exceeds 85° Fahrenheit, provide for proper humidity and ammonia levels, delineate proper lighting ranges and establish dog health criteria for alternative flooring options. However, in the final-form rulemaking, the Department made changes to the format and substance of the standards established by the Board.

 First, the Department reorganized the final-form rulemaking by breaking it into sections that reflect specific areas of authority granted by the act, namely ventilation, auxiliary ventilation, humidity levels, ammonia levels, lighting and flooring. This was done to provide more clarity to the reviewing entities and to provide clarity to the regulated community.

 Second, the Department made substantive changes to the ventilation provisions. Although based on the work done by the Board, the measurement standards have been amended. In its consultations with engineers and architects, all of whom design kennel facilities, those experts confirmed that mechanical ventilation systems were necessary to assure the proper ventilation levels in kennel facilities. The proper levels were determined by the research done by the Board and additional research done by the Department in drafting the final-form rulemaking. The research included additional discussions with engineers and architects that design and build kennel facilities, consultations with animal scientists, a meeting with an AKC senior field representative and information and input from Board and Department veterinarians.

 The Department, in the final-form rulemaking, no longer requires a measurement of ''air changes per hour,'' but instead requires a measurement of cubic feet per minute (CFM) per dog. Air changes per hour have been replaced by CFM per dog and standards and measuring tools for the CFM per dog standard are quite specific and have been added to final-form § 28a.2(b) and (f) (relating to ventilation).

 The change to CFM per dog is consistent with comments submitted by Dr. Kephart of PSU and discussions and consultations with Dr. Mikesell and Dr. Kephart as well as discussions and consultations with engineers from Learned Design and Paragon Engineering Services. Additionally, standards regarding circulation of the air, minimum fresh air rates and filtration have been established in subsection (f) of the final-form regulation. Final-form § 28a.2(b) entails information the Department requires of the kennel owner. The information requested is directly related to and provides verification of compliance with the ventilation and air circulation standards in § 28a.2 and the auxiliary ventilation, humidity and ammonia level provisions in final-form §§ 28a.3—28a.5 (relating to auxiliary ventilation; humidity levels; and ammonia levels).

 Because of the restructuring of the final-form rulemaking, many of the provisions in § 28a.2 have been moved, modified or deleted.

 In addition, the provision in § 28a.2(i) requiring 100% fresh air has been deleted from the final-form rulemaking. Although 100% fresh air circulation is not prohibited by the final-form rulemaking, the change to this subsection was made after consultations with the engineers and architects that design kennel buildings revealed that a 100% fresh air exchange rate in this Commonwealth would make it too expensive and difficult to heat or cool the kennel housing facility, not allow for recapture of heated or cooled air and not allow for proper humidity control in the kennel housing facility. The ventilation standards now established in the final-form rulemaking are more easily measured and verified, continued to account for the health and safety of dogs housed in commercial kennels and require or allow kennel owners to increase or reduce the air circulation in a kennel based on the number of dogs housed in the kennel facility.

 There are two general reasons behind these changes. First, CFM per dog is much more easily measured and verified and more objective in nature. As set forth in the final-form rulemaking, compliance will be based on CFM information on the ventilation equipment, certification from an engineer or architect that installed or inspected the equipment and information supplied by the kennel owner and verified by a professional engineer, such as the cubic feet of each area of the kennel housing facility in which dogs are housed and the number of dogs housed or able to be housed in each area of the kennel housing facility. Second, CFM per dog will require and allow kennel owners to design their ventilation systems to have the total capacity required to assure circulation of the proper amount of air required by the final-form rulemaking for the total number of dogs able to be housed in the kennel housing facility. It will then allow the kennel operator to utilize only that capacity necessary to achieve the required circulation for the number of dogs housed or kept in the kennel facility. In other words, the system will be easier to design, ventilation rates will be more specific and easier to verify and the system will be less costly to operate. While still requiring the system to be designed to account for the maximum number of dogs the kennel owner will have in the kennel housing facility, it will allow the kennel owner to utilize less of the total capacity of the system if dog numbers decrease. This not only lowers operation costs, but also sets a proper standard to assure dogs are not subjected to a circulation standard that is too strong or unable to be enforced. It is a more objective standard, easier to measure and verify and fairer and less costly to operate, as the total CFM rate will increase and decrease based on the number of dogs.

 A one-time certification, by a professional engineer, of the ventilation, auxiliary ventilation and humidity system to be utilized is required by the final-form rulemaking. This requirement allows the kennel owner and the Department to assure the required standards can and will be met by the operating system and does not require or rely upon measurements or assessments made by nonengineers such as the kennel owner or State dog wardens.

 The illness standards established under the ventilation provisions in the final-form rulemaking have also been changed from the proposed rulemaking. Proposed § 28a.2(9), regarding conditions in dogs that were signs of illness and stress, has been modified in the final-form rulemaking. The corresponding provisions in the final-form rulemaking are in § 28a.2(h).

 The Department discussed these issues with animal scientists from PSU as well as with Department and Board veterinarians. The number and type of conditions in dogs that may denote poor ventilation has been reduced and are consistent with the suggestions of the experts consulted. In addition, the signs of stress or illness trigger an investigation of the ventilation, air circulation, humidity levels, heat index (HI) values and ammonia levels in the area or room of the kennel where those signs exist in dogs. If the investigation reveals problems in those areas, then proper enforcement action may be taken by the Department. However, the mere existence of the signs of stress or illness does not in and of itself constitute a violation of this final-form rulemaking.

 The type of conditions in dogs and the illnesses or signs of stress listed are all associated with conditions that veterinarians have asserted can result from poor ventilation, air circulation, humidity, heat stress or ammonia or carbon monoxide levels that are not within the ranges established by the final-form rulemaking. For instance, respiratory distress can be associated with humidity, temperature levels or ammonia levels that are too high as well as insufficient air circulation or auxiliary ventilation. Section 28a.2(h)(2) sets forth the signs associated with heat distress or heat stroke, which again denotes insufficient air circulation, auxiliary ventilation or humidity level controls, or both, in that part of the kennel facility. Matted, puffy, red or crusted eyes and listlessness can be associated with high ammonia or high carbon monoxide levels. Fungal and skin disease can denote improper humidity control in the kennel facility.

 Third, the final-form rulemaking no longer requires the reduction of ambient temperature levels in commercial kennels. Although the implementation and use of temperature reducing air conditioning systems is still allowed and preferable, the Department, after viewing the comments submitted by the Office of Attorney General, Independent Regulatory Review Commission (IRRC) and the House and Senate Agricultural and Rural Affairs Committees (House and Senate Committees) regarding requiring ambient air temperature reduction when kennel housing facilities exceeded 85° Fahrenheit, decided to utilize the absolute authority in the act to regulate humidity levels and thereby assure a proper environment. The authority to regulate humidity levels is absolute. The humidity levels established in the final-form rulemaking are based on animal husbandry and scientific information regarding dog survivability and safety and HI levels. The rationale for the approach and support for the levels established in the final-form rulemaking is in previous answers to comments and hereafter.

 Without temperature control, the Department sought to ascertain the proper humidity levels and auxiliary ventilations standards that would assure the health, safety and welfare of dogs confined to kennels when temperatures rise above 85° Fahrenheit. Kennel owners and others have asserted in their comments that their kennel buildings can be made to ''feel cooler'' through the use of additional air circulation/ventilation or the mere increase of fan speed and the amount of air being pulled through the kennel building. However, science does not support this comment or conclusion.

 The Department, with the assistance of engineers and Department and Board veterinarians and research provided by Dr. Karen Overall of the Board, reviewed HI values for cattle, swine, poultry and humans. Those values show that all of those animals are in a danger zone once temperatures rise above 85° Fahrenheit if there is not a correlated reduction in humidity levels. The reason for this is supported by the physiology of cooling. Humans, cattle and equine cool their internal body temperatures by perspiring, which is the most efficient cooling mechanism. Dogs and swine do not have sweat glands over a majority of their body and do not perspire. Dogs cool their internal body temperatures mostly through panting, with a minimum amount of cooling provided by perspiring through the pads on their feet. However, perspiring or panting in and of itself does not result in the cooling of the body. For the cooling effect to occur the perspiration or moisture, whether it is a human, cow or on the tongue of the dog, has to be evaporated. On a humid day or in a humid environment, there is already a lot of moisture in the air and the evaporative process is either less efficient or does not take place and the internal body temperature continues to rise.

 In sum, a cooling effect cannot be provided by simply increasing the amount of humid air flowing over the body of a dog or other animal. Pulling already moist and humid air over the body does not and will not allow for the evaporation of perspiration and will not provide a cooling of the body. The result is that when temperatures rise above 85° Fahrenheit, humidity levels shall be controlled to attain an HI value that will assure the health, safety and welfare of dogs confined in kennels. The HI charts in Appendix A evidence that value should be set at a maximum HI of 85° Fahrenheit (85 HI).

 Finally, the Department, with the assistance of Board member Dr. Overall and along with Department veterinarians reviewed, found a dog study that established ''survivability'' levels for confined dogs. The study, which is included with the comment and response document, sets forth evidence that beagle dogs cannot survive for more than 6 hours at maximum HI values of between 100°—106° Fahrenheit. The study goes further to conclude the relative humidity values in the study should be reduced by 20% to assure the welfare and safety of dogs. The final-form rulemaking allows a 4-hour window (consistent with Federal animal welfare regulations standards) for kennel owners to reduce the humidity levels in their kennels to attain the required HI value of 85. However, during that 4 hour window, the HI value must never go above 90° Fahrenheit (90 HI). The maximum HI value to ensure survivability and safety, the latter requiring the recommended 20% reduction in humidity levels from the study's maximum values, is 95—98 HI. However, this is tempered by the Tufts Animal Condition and Care (TACC) criteria, specifically the TACC Weather Safety Scale, authored in 1998 by Dr. Gary Patronek, then-director of the Center for Animals and Public Policy at Tufts University School of Veterinary Medicine and first published in Recognizing and Reporting Animal Abuse: A Veterinarian's Guide. This widely-used scale, one of several canine assessment tools focused on consequences for the dog, indicates that, even with water and shade available as in a commercial kennel setting, a potentially unsafe situation develops above 90° Fahrenheit, especially for brachycephalic, obese or elderly dogs, as well as dogs under 6 months of age. Although this final-form rulemaking is based on HI, regulates relative humidity rather than temperature, and a temperature over 90° Fahrenheit would be permitted if combined with a relative humidity that would result in an HI of no more than 90, the inclusion of the TACC Weather Safety Scale as a basis for the regulation emphasizes that the standard being set goes beyond survivability to minimize adverse heat-related consequences for dogs in commercial kennels. The survivability study and the TACC Weather Safety Scale are generally acknowledged to be the only two scholarly resources that give specific heat-related safety guidance applicable to canines.

 The Department will be able to monitor and regulate this requirement because of a change to the final-form rulemaking that requires the Department to provide and install the temperature and humidity recording devices. This takes away the cost to the kennel owner of purchasing these devices, allows the kennel owner to constantly and consistently monitor temperature and humidity levels and removes inconsistency in the devices utilized to take readings or the areas of the kennel measured.

 In conclusion, the Department's research, consultations and discussions support the humidity levels established in the final-form rulemaking. The humidity levels are necessary and proper for the health, safety and welfare of dogs confined to kennels. The range or humidity levels established for kennels when the temperature is 85° Fahrenheit or below is within normal animal husbandry practices and set at the least stringent levels suggested. Humidity levels and the time period of exposure established in the final-form rulemaking for temperatures above 85° Fahrenheit are supported by scientific research performed on animals with more efficient cooling mechanisms than dogs or are based on scientific research specifically done on dogs. Finally, the engineers and architects consulted believe the requirements in the final-form rulemaking are attainable and the Department set forth the cost estimates in the regulatory analysis form that accompanies the final-form rulemaking.

 Fourth, the Department reassessed the auxiliary ventilation standards that shall be utilized when the temperature within the commercial kennel rises above 85° Fahrenheit. The Department, after consultation with engineers and an AKC senior field representative, set forth auxiliary ventilation options that are currently being utilized by kennel owners and approved and verified by the engineers as being attainable and, if properly utilized in conjunction with humidity standards, providing appropriate ventilation to address dog health issues when temperatures rise above 85° Fahrenheit.

 Fifth, with regard to lighting, the Department, with the assistance of members of the Board and Department veterinarians, did additional research into the issue of the proper illumination levels in kennels. In addition, the Department spoke with animal husbandry scientists at PSU and with engineers at Learned Design and Paragon Engineering Services who design kennel buildings. The consensus was that 40—60 foot candles of light is necessary to assure proper animal husbandry practices, including the ability to monitor the dogs, assure sanitation and cleanliness of the kennel (compliance with statutory and regulatory standards) and provide for the proper health and welfare of the dogs. In addition, the Department researched and reviewed National Institutes of Health (NIH) policies and guidelines regarding biomedical and animal research facility design. The NIH requires average lighting levels in animal facilities to be between 25—75 foot candles, which translates to 279—800 lux. The guidelines state the exact lighting levels should be based on species.

 The veterinarians and animal husbandry scientists consulted felt the range of 40—60 foot candles, which translates to 430—650 lux, was appropriate for both the dogs and the humans that had to care for those dogs. This level is further supported by NIH standards for office and administration areas and PSU's standards for class room lighting, which are also between 40—60 foot candles. This level will provide for the health and welfare needs of the dogs housed in the facilities and allow for proper inspection of the facilities and animal husbandry practices, such as cleaning and sanitizing and monitoring the dogs for health issues.

 The night time lighting provision has been removed from the final-form rulemaking. However, for clarity purposes, the night time lighting standard was consistent with studies done that show dogs need a minimum level of night time lighting (1—5 foot candles) to allow a natural startle response. The night time lighting standard was for the welfare of the dogs. Kennel owners can turn on or add additional light at night time if there is a need for them to be in the kennel.

 The final-form rulemaking allows lighting standards to be achieved through the use of either natural or artificial light, or both, and sets both general and specific standards for each type of lighting. The final-form rulemaking does not require that a certain area of the kennel facility be devoted to windows or skylights to allow natural light and utilizes the language of the Federal regulations set forth under the Animal Welfare Act (7 U.S.C.A. §§ 2131—2159) with regard to the type of coverings for windows and skylights. In addition, the final-form rulemaking reiterates the language of the act with regard to excessive light and uniformity of diffusion of such light (which is also consistent with the Federal Code of Regulations) The Department has also defined excessive light, based on literature provided by a Board veterinarian.

 Finally, based IRRC's clarity comments, the Department reformatted final-form § 28a.8 (relating to flooring). This section now begins by reiterating the standards established by the act. The last subsection of the flooring section addresses alternative flooring.

 The Board has the authority, but is under no obligation, to address individual alternative flooring requests or types under section 207(i)(3)(iii) of the act. That provision clearly states the Board ''may'' address alternative flooring. The Board is under no obligation to address these requests, either through the regulations or through another avenue such as a public meeting or hearing of the Board. If the Board chooses to address a particular type of flooring, the Board can determine based on its expertise whether or not that particular type of flooring meets the standards in section 207(i)(3)(i) of the act and the animal husbandry and welfare requirements in section 221(f) of the act.

 To the extent the Board, and hence the Department, did address alternative flooring in the final-form rulemaking, it did so by establishing requirements that are based on animal husbandry, their expertise as veterinarians and input received during their deliberations on the guidelines. The Department included the standards set by the Board in the initial guidelines and the proposed rulemaking—such as requiring proper drains, flooring that is not capable of heating to a level that could cause injury to the dogs and will provide a nonskid surface—in the final-form rulemaking, but added language to these provisions to clarify the intent and provide more objective standards. In addition, based on discussions with Department and Board veterinarians, the Department added language that provides for the welfare of the dogs, based on proper animal husbandry practices. The Department's State dog wardens and veterinarians have witnessed the ill effects caused to dogs that are housed on a surface that splays their feet, caused damages to the feet or pads or allows the pads, feet or toenails of dogs to become snared or entrapped. Therefore, § 28a.8(d)(4) was added to the final-form rulemaking to effectuate those animal husbandry and welfare practices. This should add some clarity to the requirements for alternative flooring.

 In another attempt to add clarity, the Department added § 28a.8(e) to the final-form rulemaking. Section 207(i)(3) of the act contains flooring standards for dogs over 12 weeks of age. However, dogs under 12 weeks of age are not subject to those same requirements and may be housed on flooring meeting the standards of section 207(h)(2)(x) of the act and § 21.24(d) (relating to shelters). These provisions do not account for or contemplate nursing mothers housed with their puppies or for dams or foster dams housed with dogs less than 12 weeks of age. Therefore, because of the confusion regarding the absence of specific direction in the act, the Department established a standard for this specific situation and added language to the final-form rulemaking delineating that standard. Final-form § 28a.8(e) requires that at least 50% of the flooring of a primary enclosure that contains a nursing mother and her litter or a dam or foster dam and puppies less than 12 weeks of age must meet the flooring standards for the adult dog (that is, those in section 207(i)(3) of the act).

Summary of Major Features

§ 28a.1. Definitions.

 This section defines terms utilized in Chapter 28a to further clarify the regulations. The Department made significant amendments to the substantive provisions of this section based on comments received after publication of the proposed rulemaking and on research and input from experts and industry members. As a result, the Department revised the definition of ''excessive light'' and added definitions to the final-form rulemaking.

 The definition of ''excessive light'' was revised as a result of comments from IRRC and others regarding clarity. The term ''excessive light'' and the prohibition against excessive light is in section 207(h)(8) of the act. In addition, the prohibition against excessive light is in 9 CFR 3.2(c) and 3.3(c) (relating to indoor housing facilities; and sheltered housing facilities). The final-form rulemaking merely restates the requirements of the act with regard to excessive light. However, since the definition was questioned, the Department, with the assistance of Dr. Karen Overall of the Board, researched what level of lighting would be considered excessive for canines. The result of that research is the definition, which essentially states that direct, undiffused light of an intensity that is 12 foot candles or more greater than the maximum foot candles of light (that the dog is raised in) required by the final-form rulemaking would be considered harmful and therefore ''excessive'' if it is shining directly into the primary enclosure of a dog.

 The definition of ''circulation or circulated air'' was added to provide clarity to the ventilation provisions in the final-form rulemaking. As stated in the general summary of changes, the Department made significant changes to the ventilation requirements in the proposed rulemaking. The changes were based on input from the engineers consulted. Those engineers also suggested adding this definition and provided and approved the language for the definition.

 The definition of ''commercial kennel'' from the act was added to this section to allow for more clarity for both the regulated community and the general public.

 The definition of ''CFM—Cubic Feet per Minute,'' as set forth more specifically in the comment and response document, based on input from engineers and animal scientists, the Department changed the ventilation measurement standard in the final-form rulemaking from ''air exchanges per hour'' to CFM per dog. In general, the change allows for a more accurate, objective and consistent measurement that is easier to comply with and verify. It also provides economic advantages with regard to the ability to tailor the ventilation system and the rate of air circulation to the number of dogs housed in the commercial kennel facility.

 The lighting provisions of the final-form rulemaking, consistent with section 207(h)(8) of the act, mandate that dogs receive a diurnal light cycle. The proposed rulemaking did not define what that entailed and commentators requested that the Department more fully define or provide substantive language to provide clarity with regard to what pattern of lighting would be considered a diurnal light cycle. The Department decided to define ''diurnal light cycle.'' The Department consulted animal scientists and Board and Department veterinarians to come up with an appropriate definition. The definition is consistent with normal animal husbandry practices and definitions.

 As with the definition of ''circulation,'' the definition of ''fresh air ventilation'' is added to provide clarity to the ventilation provisions in the final-form rulemaking. The term was also added because of a comment regarding the phrase ''100% fresh air,'' which appeared in the proposed rulemaking. The term now helps to define what percent of the ventilated and circulated air in a kennel facility must be ''fresh air ventilation,'' which is at least 30 CFM of the total ventilated air. The definition was provided and approved by the engineers consulted.

 Numerous commentators suggested the Department should define ''full-spectrum lighting'' in the final-form rulemaking. Full-spectrum lighting is required for commercial kennels that utilize artificial light to illuminate their kennel facility. The Department consulted dictionaries and the Internet and spoke with the engineers in when defining the term. Full-spectrum lighting has been available since the 1930s.

 For reasons set forth more fully and specifically in the comment and response document, the final-form rulemaking does not require a reduction in ambient temperatures inside a commercial kennel facility. Instead the final-form rulemaking focuses on appropriate humidity levels. Humidity and temperature levels go hand-in-hand in determining the HI, which is the human-perceived equivalent temperature. High heat and humidity are dangerous to human and animal health. The Department has utilized HI charts and studies to determine the proper HI for dogs. The definition of ''Heat Index (HI) or Temperature and Humidity Index (THI)'' is taken from the definition established by the United States National Weather Service.

 The definition of ''professional engineer''—The definition was taken directly from § 139.2a (relating to definitions). This definition was added to account for and give clarity to § 28a.2(b)(1), which was added to the final-form rulemaking. This paragraph requires certification by a professional engineer that the ventilation system in the commercial kennel meets the standards and requirements of the regulation. This is a one-time requirement and alleviates the necessity for a kennel owner to purchase measurement equipment or attempt to ascertain compliance on his own or to rely on measurements, readings and calculations performed by the Department.

 The engineers consulted suggested the Department define the terms ''ventilation or ventilating'' to provide clarity. The Department agreed and utilized a definition supplied by one and approved by both engineers.

§ 28a.2. Ventilation.

 As previously stated, proposed § 28a.2 has been significantly revised, including changing the measurement of ventilation and air circulation to CFM per dog. Provisions regarding auxiliary ventilation, humidity and ammonia standards have been reestablished under a separate section.

 The following details specific changes made to § 28a.2 in the final-form rulemaking.

 The proposed first sentence is not a regulatory standard and has been removed from the final-form rulemaking.

 Proposed § 28a.2(1) regarding the reduction of temperature and removal of dogs once the kennel temperature reaches 85° Fahrenheit has been deleted from the final-form rulemaking. The Office of Attorney General, the House and Senate Committees and IRRC questioned the authority of the Department to require the ambient temperature be reduced to or maintained at 85° Fahrenheit in commercial kennels. While temperature reduction is not prohibited and is preferred, the Department utilized its absolute authority and duty to regulate humidity to account for the health and welfare of dogs in commercial kennels once the temperature rises above 85° Fahrenheit.

 Proposed § 28a.2(2) and (3), regarding humidity standards, has been deleted and moved to final-form § 28a.4. The humidity provisions in the final-form rulemaking establish separate and distinct humidity levels for when temperatures in the commercial kennel are at or below 85° Fahrenheit and when the temperature in the kennel facility rises above 85° Fahrenheit. The humidity range for temperatures below 85° Fahrenheit has been broadened to 30%—70% and the humidity ranges acceptable when temperatures rise above 85° Fahrenheit are very specific and based on HI values. The ranges established are based on consultations with engineers, architects, animal scientists and veterinarians, as well as National weather service information, HI standards for animals such as swine, poultry, cattle and humans, a survivability study conducted on dogs and the TACC Weather Safety Scale for dogs. The ranges are based on animal science and evidence of heat stress and are consistent with the ranges engineers suggest are utilized in their designed facilities or are proper and attainable in commercial kennels.

 Proposed § 28a.2(4), regarding ammonia levels, has been deleted and moved to § 28a.5. The ammonia level standards, after consultation and discussions with engineers, architects, animal scientists and veterinarians as well as research cited or done by those experts, denoted that 10 parts per million (ppm) was too low to effectively measure and monitor. The consensus of the experts consulted was that a level of 15 ppm or lower was acceptable and proper for animal welfare. They agreed that a level of 20 ppm still caused eye and respiration problems in animals with long term exposure to these levels.

 Proposed § 28a.2(5), regarding proper levels of carbon monoxide, has been deleted. The final-form rulemaking reestablishes provisions regarding carbon monoxide since animal scientists and veterinarians agree that the colorless and odorless gas can be harmful or deadly to the dogs. However, § 28a.6 (relating to carbon monoxide detectors) does not set a carbon monoxide level but instead requires carbon monoxide monitors to be installed in a kennel that utilizes a carbon based heating, cooling or ventilating system. This provides the kennel owner with a warning that the dogs and humans in the facility are in danger from high carbon monoxide levels. The expulsion of carbon monoxide and other gases are part of ventilation and regulated under that authority.

 Proposed § 28a.2(6), regarding malfunction of the mechanical ventilation system, has been moved to § 28a.2(g). The kennel owner no longer has to consult with the Department on the steps to be taken and the Department will no longer be required to retain an engineer. Instead, under § 28a.2(g)(1)—(4), the kennel owner shall immediately take steps to correct the malfunction or failure and if temperatures rise above 85° Fahrenheit, notify the kennel's veterinarian within 4 hours and notify the Department after 24 hours. The provision sets forth the time period within which notification shall be given and now takes weekends, nights and holidays into consideration. The kennel owner shall contact the kennel veterinarian to consult on dog health issues and notify the Department when the malfunction has been repaired.

 Proposed § 28a.2(7), regarding particulate matter, has been deleted from the final-form rulemaking.

 Proposed § 28a.2(8), regarding air changes, has been deleted from the final-form rulemaking.

 The provisions in proposed § 28a.2(8) have been replaced as follows:

 Proposed § 28a.2(8)(i), regarding air exchanges per hour, have been replaced in the final-form rulemaking with a CFM per dog standard in § 28a.2(f)(2) and (4). The rate of 100 CFM per dog per minute is standard practice according to the engineers consulted and comports with the information and suggestions of the animal scientists consulted by the Department. In addition, the 100% fresh air requirement has been deleted from the final-form rulemaking. A minimum of 30 CFM per dog per minute must be fresh air, the rest may be recirculated. This standard also comports with the standards suggested by the engineers and animal scientists. As set forth more fully in the comment and response document, the change to CFM was made after consultations with engineers and animal scientists and provides for a more objective measurement standard. It will also decrease the cost of compliance and monitoring to both the regulated community and the Department.

 Proposed § 28a.2(8)(i), (i)(A) and (ii), regarding calculating air exchanges per hour, has been replaced in the final-form rulemaking. The final-form rulemaking now measures ventilation in CFM per dog and certification of the systems by a professional engineer under § 28a.2(b) and (f). This includes information regarding the volume and dimensions of the facility and the total number of dogs to be housed in the facility under § 28a.2(b). In addition, the Department may take periodic measurements and readings under § 28a.2(c)(2).

 Proposed § 28a.2(8)(iii), regarding violations, has been deleted. The kennel owner will be in violation of a specific section or subsection with which he does not comply. The related provisions of § 28a.(8)(iv) have also been deleted.

 Proposed § 28a.2(8)(v), which required the Department to hire an engineer if the kennel owner violates a ventilation provision, has been deleted. The kennel owner, not the Department, is responsible for taking steps to attain and assure compliance and the Department does not have authority to require the kennel owner to allow a person who is not an employee of the Department into the kennel.

 Proposed § 28a.2(9), regarding signs of illness and stress in dogs, has been moved to § 28a.2(h). The number and type of conditions in dogs that may denote poor ventilation has been reduced. In addition, the signs of stress or illness trigger an investigation of the ventilation, air circulation, humidity levels, HI values and ammonia levels in the area or room of the kennel where those signs exist. If the investigation reveals problems in those areas, then proper enforcement action may be taken by the Department. The mere existence of the signs of stress or illness however, does not in and of itself constitute a violation of these regulations. The type of conditions in dogs and the illnesses or signs of stress listed are associated with conditions that veterinarians have asserted can result from poor ventilation, air circulation, humidity, heat stress or ammonia or carbon monoxide levels that are not within the ranges established by the regulations. For instance, respiratory distress can be associated with humidity and temperature levels or ammonia levels that are too high as well as insufficient air circulation or auxiliary ventilation. Section 28a.2(h)(2) sets forth the signs associated with heat distress or heat stroke, which again denotes insufficient air circulation, auxiliary ventilation or humidity level controls , or both, in that part of the kennel facility. Matted, puffy, red or crusted eyes and listlessness can be associated with high ammonia or high carbon monoxide levels. Fungal and skin disease can denote improper humidity control in the kennel facility.

 Proposed § 28a.2(10), regarding dog odor, stale air, moisture and air flow, has been deleted. The final-form rulemaking establishes specific ventilation and ammonia and humidity control mechanisms which, if implemented properly, will control for these factors.

 Proposed § 28a.2(11), regarding filtering the air with small particle, nonozone producing air filters, has been moved to § 28a.2(f)(5). The filtration standards merely require a common minimum efficiency reporting value (MERV) rated filter that can be acquired at a home building supply store. The minimum MERV value is 8. This is standard practice in kennel facilities designed by the engineers consulted.

 Proposed § 28a.2(12), regarding applicable codes, has been deleted. As set forth more fully in the comment and response document, the Department does not have authority to regulate applicable Federal, State or local building codes.

 The following subsection have been added to § 28a.2 in the final-form rulemaking.

 Section 28a.2(a) amends the introductory language of proposed § 28a.2. The new language still requires a mechanical ventilation system, but adds the word ''functional'' for more clarity and to denote it must be able to ventilate and circulate air. The system must also be in operation at all times to meet the 100 CFM per dog air circulation standards of the section. The 100 CFM per dog standard was set in conjunction with consultations with engineers that design and build kennel facilities and utilize this rate as a standard in those kennel designs and in response to animal scientists who suggested a CFM rating per dog was more objective and fair. The CFM rate per dog allows a kennel owner to provide ventilation on a basis that takes into account the number of dogs in the kennel facility.

 The final-form rulemaking also adds language to this section that makes it clear the system must meet the requirements in §§ 28a.3—28a.6. These sections have been set forth as independent, but related, sections for clarity and form.

 Final-form § 28a.2(b), regarding certification of ventilation system, requires written certification from a professional engineer attesting that the system was designed or inspected by a professional engineer and that it meets the standards and requirements of the ventilation, auxiliary ventilation, humidity and ammonia control sections of the final-form rulemaking and that carbon monoxide monitors are installed where necessary. It also requires the submission of information setting forth the dimensions of the kennel, a description of the mechanical ventilation equipment, including CFM ratings, and the humidity control and auxiliary ventilation equipment or system to be utilized as well as the highest number of dogs upon which the certification was based. The latter information will allow the Department to assure that changes have not been made to the certified system going forward. Engineers shall also set forth where the temperature and humidity monitors required by the regulations shall be installed. The time line for submission of certification is in § 28a.2(b)(2) and (3).

 The certification requirement as a whole was implemented in response to comments questioning the subjectivity and expense of kennel owners and State dog wardens having to take individual readings on each visit to assure compliance. Commentators wanted a more objective approach that would be less costly and time consuming to both the regulated community and the Department. By requiring a one-time certification (unless recertification is required based on the standards of that provision), the kennel owner and the Department are assured by an independent, professional party that the system installed, if operated correctly, meets the requirements of the regulation. In addition, the engineers consulted have verified that they would already be certifying any system they designed or inspected and that there are enough engineers to handle the certification process that would have to take place in this Commonwealth. This process lowers the cost of compliance, allows for a completely objective approach to assuring compliance and interjects a third party chosen by the kennel owner to design or retrofit the kennel to comply with the regulatory standards. The party shall be a licensed professional engineer who is familiar with the standards of the regulations and can assure the system installed meets all the parameters of the regulations.

 Final-form § 28a.2(c), regarding inspection, establishes the general minimum criteria and standards regarding the ventilation, auxiliary ventilation and humidity control systems that will be reviewed and checked during each kennel inspection by a State dog warden or other employee of the Department.

 Final-form § 28a.2(d), regarding recertification, requires a kennel owner to have his ventilation, auxiliary ventilation or humidity control system recertified by a professional engineer if he is found to be in violation of the ventilation, auxiliary ventilation, humidity or ammonia level requirements in the final-form rulemaking.

 Final-form § 28a.2(e), regarding ventilation and circulation, sets forth the general standard provided for in the proposed rulemaking requiring mechanical ventilation equipment. It sets forth additional objective and clarifying language requiring the system to physically move air, provide ventilation, fresh air exchange, circulation, heating, dehumidification and filtration and gives examples of the type of equipment that may be included. The mechanical system is necessary to provide and meet the CFM ventilation requirements in the regulations. The CFM rates are established based on consultations with engineers that design kennel facilities, animal scientists and veterinarians.

 Final-form § 28a.2(f), regarding standards, establishes general and specific ventilation rates for the area of kennels and kennel facilities that house dogs.

 Paragraph (1) establishes the general criteria that ventilation and circulation, at the required rates, be provided throughout the kennel and kennel housing facility where dogs are housed, kept or present. Paragraph (2) establishes the circulation rate at 100 CFM per dog per minute. This rate is consistent with the rates espoused by animal scientists and engineers that design and build kennel housing facilities. The rate will provide proper ventilation and air circulation. The CFM per dog will be required to be increased when temperatures in the kennel and kennel housing facility rise above 85° Fahrenheit and auxiliary ventilation is required.

 Paragraph (3) requires the ventilation system to have the capacity to meet the CFM per dog rate established in paragraph (2) by requiring the capacity to be based on the highest total number of dogs held in the kennel at any one time.

 Paragraph (4) no longer requires 100% fresh air, but instead allows air to be recirculated in the kennel. It requires that at least 30 CFM per dog of the circulated air be fresh air, as defined in the final-form rulemaking. The engineers and animal scientists consulted set this standard as a common animal husbandry practice and a standard that will protect the health and welfare of the dogs. In addition, the recirculated air standard will allow kennel owners to control humidity and ammonia levels in the kennel facility and reduce heating costs in the winter months.

 Paragraph (5) requires a standard air filter meeting at least a MERV 8 efficiency. These filters are standard filters utilized in ventilation and air circulation systems and can be found in most building supply stores. The standard was suggested by and agreed upon by the engineers and animal scientists consulted.

 Paragraph (6) establishes the design and placement of the ventilation to assure it provides proper circulation of air to the dogs housed in the kennel facility. The engineers consulted suggested and agreed upon the language.

 Final-form § 28a.2(g), regarding malfunctions, establishes general and specific requirements and actions a kennel owner shall take in response to a mechanical malfunction or failure of the ventilation system. This section prescribes notice provisions for when the temperature inside the kennel exceeds 85° Fahrenheit and requires the kennel owner to consult with his veterinarian regarding canine health issues. When temperatures in the kennel building exceed 85° Fahrenheit during the malfunction or breakdown, the kennel owner has a 4-hour time period to correct the malfunction, after which he shall consult his veterinarian regarding dog health issue and begin recording temperature and humidity levels within the kennel facility. This is consistent with the 4-hour window provided for humidity levels and dog health issues in other parts of the final-form rulemaking. The kennel owner shall notify the Department of the malfunction if it exceeds 24 hours and temperatures in the kennel are above 85° Fahrenheit.

§ 28a.3. Auxiliary ventilation.

 In this final-form rulemaking, the Department added § 28a.3 to address auxiliary ventilation. This was done to provide more clarity to the final-form rulemaking, both with regard to notification of specific standards to the regulated community and authority under the act. The auxiliary ventilation standards were not clearly or specifically set forth in the proposed rulemaking. The auxiliary ventilation provisions are within the mandates of the act. Sections 207(h)(7) of the act requires that ''. . . The Canine Health Board shall determine auxiliary ventilation to be provided if the ambient air temperature is 85° F or higher.''

 The specific changes made to the final-form rulemaking regarding auxiliary ventilation are summarized as follows:

 Final-form § 28a.3(a) sets forth the general standard required under section 207(h)(6) and (7) of the act, regarding the requirement that auxiliary ventilation be utilized in any part of a kennel facility where dogs are present, housed or kept, when the temperature in the kennel rises above 85 degrees F. It provides the clarity that the auxiliary ventilation is to be provided in addition to (auxiliary), not in place of the required ventilation and humidity standards of the regulation. The kennel must still maintain the ventilation and humidity controls required by the regulation. It also provides that in the event of a malfunction or failure of the primary ventilation system, the auxiliary ventilation system may be utilized.

 Final-form § 28a.3(b) sets forth auxiliary ventilation devices and techniques that may be utilized by the kennel owner. They are based on discussions with an AKC senior breed field representative that has knowledge of techniques currently utilized in breeding kennels and were reviewed and approved by engineers consulted by the Department. These techniques and devices are not the only ones that can be utilized. The section provides guidance to the regulated community regarding what may be utilized.

§ 28a.4. Humidity levels.

 Sections 207(h)(7) and 221(f) of the act confer upon the Board and the Department, as the promulgating agency, the authority and absolute duty to establish humidity levels that account for the health and welfare of dogs housed in commercial kennels. Section 207(h)(7) of the act states that ''Housing facilities for dogs must be sufficiently ventilated at all times when dogs are present to provide for their health and well-being and to minimize odors, drafts, ammonia levels and to prevent moisture condensation'' and that ''The relative humidity must be maintained at a level that ensures the health and well-being of the dogs housed therein. The appropriate . . . humidity . . . ranges shall be determined by the Canine Health Board.'' Section 221(f) of the act, regarding the purpose of the Board, states that ''The board shall determine the standards based on animal husbandry practices to provide for the welfare of dogs under section 207(h)(7) . . . ''

 The standards in final-form § 28a.4(a)—(4) are based on discussions with engineers that build and design kennel housing facilities, animal scientists from PSU and veterinarians from the Board and the Department.

 With regard to the standard humidity range in final-form § 28a.4(a)(1), the humidity range of 30%—70% when temperatures are below 85° Fahrenheit is a standard range utilized in most animal husbandry practices. This is according to the experts consulted. The engineers and some veterinarians believed the range should be tighter (40%—65%), but the Department chose to utilize the greater range, since the experts consulted did not believe that range would be detrimental to the welfare of the dogs.

 With regard to the humidity levels to be established when temperatures in a kennel facility rise above 85° Fahrenheit, the Department utilized the HI. The HI combines the effects of temperature and humidity to come up with an HI value. The HI value establishes what a certain temperature and humidity combined actually feels like. An HI does not require the control of temperature. It allows for higher temperatures, so long as humidity is properly controlled. It gives kennel owners more flexibility than the Federal regulations and allows the Department to determine the humidity level that must be attained, when temperatures are above 85° Fahrenheit, for the kennel facility to be at a value that will account for the welfare of the dogs housed therein.

 The science behind controlling humidity to allow for proper animal welfare is that the higher the humidity level, the more water vapor the air is holding or carrying. The more water vapor in the air, the harder it is for an animal to cool its internal body temperature, since cooling of the body is not achieved through mere perspiration or panting, but rather through the absorption of the perspiration by the air passing over the skin of an animal or the tongue of the dog. Air containing high levels of humidity cannot absorb the perspiration on the skin or water on the dogs tongue and cooling does not occur or is less efficient. This is why high temperatures and high humidity combine to form heat stress dangers. It is also the reason that merely blowing a larger volume of hot, humid air over a dog or other animal will not allow for additional cooling of the internal body temperature of that animal.

 Final-form § 28a.4(a)(2) addresses the humidity range, expressed in an HI value, that must be achieved when the temperature in any part of the kennel housing facility rises above 85° Fahrenheit. The HI value of 85 established by this section is based on HI charts that apply to other animals, such as swine, cattle and fowl, and also on HI values that apply to humans. In all cases, an HI that is higher than 85 begins to put these animals into a heat stress danger. Most of these animals have body cooling systems that are more efficient than those of dogs, with humans being the most efficient. Therefore, the Department believes an HI value of 85 for dogs is the most conservative regulatory approach the Department can take and still provide a humidity level that accounts for the welfare of dogs. The engineers, animal scientists and veterinarians consulted agree an HI value of 85 is appropriate. In addition, the 85 HI value is consistent with the temperature extremes regulated by the Animal Welfare Act, which requires kennel owners to reduce temperature levels in kennels to 85° Fahrenheit (see 9 CFR 3.2(a) and 3.3(a)). It allows a 4-hour window to achieve that temperature. The temperature extreme is consistent with the heat stress indexes previously referenced. Furthermore, a survivability study conducted on beagles entitled ''A Temperature/Humidity Tolerance Index for Transporting Beagle dogs in Hot Weather,'' which was sponsored by the Federal Aviation Administration, supports the heat stress tolerances established by this section, as does the TACC Weather Safety Scale for dogs.

 Final-form § 28a.4(a)(3) establishes a window of time, once the temperature in the kennel rises above 85° Fahrenheit, for kennel owners to address humidity levels to comply with the 85 HI requirement. The 4-hour window is consistent with the 4-hour window in 9 CFR 3.2(a) and 3.3(a)), in which a kennel owner shall achieve a temperature of 85° Fahrenheit.

 The final-form rulemaking does not require a temperature reduction and temperatures in the kennel facility may remain above 85° Fahrenheit after the 4-hour period, but the humidity levels within the kennel facility shall have been adjusted to comply with and achieve an HI value of 85. In addition, the 4-hour window is consistent with previously referenced survivability study conducted on beagles. The survivability study, as well as the TACC criteria, specifically the TACC Weather Safety Scale, authored by Dr. Gary Patronek, then-director of the Center for Animals and Public Policy at Tufts University School of Veterinary Medicine and first published in Recognizing and Reporting Animal Abuse: A Veterinarian's Guide, form the basis for setting the HI cap of 90. A kennel facility may not go above an HI value of 90 and may not exceed that value during the 4-hour window. The survivability study and the TACC Weather Safety Scale are generally acknowledged to be the only two scholarly resources that give specific heat-related safety guidance applicable to canines.

 The survival study establishes scientific evidence that most breeds of dogs would not survive for more than 6 hours in conditions when the HI rose above 95—98. The study is a survival study, so it does not mean that conditions of 95—98 HI are proper or should be sustained for any length of time. An upper cap of 90 HI that may not be crossed was established using both this study and the TACC Weather Safety Scale.

 Kennel owners shall still utilize auxiliary ventilation immediately upon the temperature reaching 85° Fahrenheit and should begin to immediately take action to decrease humidity levels to assure the 85 HI value is met and maintained. Again, this is the most conservative regulatory approach the Department felt it could take and, based on scientific evidence, still protect the health and welfare of dogs.

 Final-form § 28a.4(a)(4) sets forth how the HI shall be calculated and provides an objective standard for both the regulated community and the Department regulator. The HI charts are codified in Appendix A. The Department has also provided the web site where the HI calculation can be performed and provided examples of HI values.

 The Department consulted engineers to assure the humidity levels associated with the HI values could be achieved and that kennels could be built or retrofitted or employ dehumidification devices that would allow them to meet the standards. The engineers assured the Department that these humidity levels could be achieved in commercial kennels and systems could be designed or dehumidification devices placed to assure compliance.

 Final-form § 28a.4(a)(5) sets forth a moisture condensation requirement that is consistent with section 207(h)(7) of the act, which requires that ''Housing facilities for dogs must be sufficiently ventilated at all times when dogs are present to provide for their health and well-being and . . . to prevent moisture condensation. . . .''

 Final-form § 28a.4(b)(1), regarding measurement and control standards, delineates and sets clear and objective standards regarding when and how humidity level readings shall be taken. A primary concern throughout the comments was that the regulation establishes clear standards, including standards denoting how the regulation would be enforced and the measurement standards to be utilized. This language provides the regulated community and the Department clarity with regard to enforcement of this provision.

 Final-form § 28a.4(b)(2) establishes the standards the measuring devices must meet and sets forth the requirement that the Department pay for and own the devices. The Department researched devices on the market to assure they met the standards established by this paragraph and were readily available. The Department also checked with the engineers to assure the devices met their approval. In establishing this paragraph, the Department took into account numerous comments that called for a more objective standard for measuring devices and a standard that would reduce the cost to the regulated industry. This paragraph accomplishes both goals. There will be only one standard type of measuring device that must meet standards established by the regulation. The Department will pay for and install the devices in accordance with the recommendations of the engineer certifying the kennel. Both the kennel owner and the Department may refer to the devices, the kennel owner to assure he is meeting the standards on an hourly and daily basis and the Department to assure the kennel is complying with the humidity requirements in the regulation. The final standard is completely objective, standardizes the measurement devices and reduces the cost to both the regulated community and the Department (both equipment costs and the time cost associated with taking measurements utilizing hand-held devices).

 Final-form § 28a.4(b)(3) delineates what Department inspectors will look for and what is required to establish some evidence that the kennel can regulate humidity.

 Final-form § 28a.4(b)(4) sets an objective cooling capacity requirement if air conditioning is utilized in the kennel facility. The requirements were established by the engineers consulted.

 Final-form § 28a.4(b)(5) and (6) makes it clear that the humidity monitoring devices may not be tampered with or changed in any manner by any person other than a State dog warden or employee of the Department. This will maintain the integrity of the readings and assure the readings are accurate and not able to be manipulated or changed.

 Final-form § 28a.4(b)(7) addresses the concerns expressed by some commentators regarding proper calibration of measurement devices and the frequency at which measuring devices will be checked to assure proper accuracy.

 Final-form § 28a.4(b)(8) establishes enforcement standards regarding monitoring devices.

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