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PROPOSED RULEMAKING

DEPARTMENT OF AGRICULTURE

[ 7 PA. CODE CH. 28a ]

Commercial Kennel Canine Health Regulations

[47 Pa.B. 5951]
[Saturday, September 23, 2017]

 The Department of Agriculture (Department) proposes to amend § 28a.8 (relating to flooring) to read as set forth in Annex A.

Authority

 This proposed rulemaking is authorized under the Dog Law (act) (3 P.S. §§ 459-101—459-1205). Section 902 of the act (3 P.S. § 459-902) authorizes the Department to promulgate regulations as necessary to carry out the provisions and intent of the act.

Purpose and Description of this Proposed Rulemaking

 This proposed rulemaking will delete § 28a.8(5) as Commonwealth Court determined this paragraph contradicts the express statutory provisions of the act and violates the Legislative intent of the act.

 Section 28a.8(5), regarding nursing mothers, effectively allows for up to 50% of the floor area in certain primary enclosures used to house dogs at commercial kennels to be of a type that does not comply with section 207(i)(3) of the act (3 P.S. § 459-207(i)(3)). In effect, § 28a.8(5) allowed a portion of the floor of a primary enclosure in which nursing mothers and puppies were housed to be more permeable than otherwise allowed under section 207(i)(3) of the act.

 After § 28a.8(5) became effective, a lawsuit was brought in Commonwealth Court against the Department seeking a determination that § 28a.8(5) conflicted with the act. See Barbara Keith et al. v. Commonwealth of Pennsylvania, Department of Agriculture (394 M.D. 2014). On September 9, 2016, Commonwealth Court granted summary judgment for the petitioners, and specifically determined that § 28a.8(5) directly contradicts express provisions of the act and violates the Legislative intent of the act.

 Section 902 of the act provides that regulations are to be promulgated ''after due notice and a public hearing.'' In this instance—when Commonwealth Court has already determined that § 28a.8(5) is contrary to the act and the Legislative intent—the Department believes convening a public hearing on this proposed rulemaking would be unnecessary and contrary to the public interest. The Department published the intent to rescind § 28a.8(5) at 46 Pa.B. 6646 (October 22, 2016). Although the notice confirmed the Department did not believe it was necessary or in the public interest to convene a public hearing, it afforded interested persons a window within which to request a public hearing. The Department did not receive any requests for a public hearing.

Need for this Proposed Rulemaking

 This proposed rulemaking will rescind § 28a.8(5), which Commonwealth Court determined contradicts the express statutory provisions of the act and violates the Legislative intent behind the act.

 In summary, the Department is satisfied there is a need for this proposed rulemaking and that it is otherwise consistent with Executive Order 1996-1, ''Regulatory Review and Promulgation.''

Persons Likely to be Affected

 This proposed rulemaking will apply to operators of Department-licensed commercial kennels. There are currently about 68 licensees. The Department is aware, through onsite inspection, that: 1) 14 of these kennels are in compliance with flooring requirements so that a change or expense will not be necessary when § 28a.8(5) is rescinded; and 2) 26 of these kennels will have to make some changes to flooring when § 28a.8(5) is rescinded. The Department will be inspecting the remaining 28 kennels over the next several months. With respect to a licensed commercial kennel that needs to replace flooring when § 28a.8(5) is rescinded, the Department expects these costs to be modest and notes that to the extent a commercial kennel licensee bears costs associated with replacing flooring to bring it into compliance with the requirements of the act, it is the act, rather than the regulation, which imposes these costs. This is particularly so when Commonwealth Court has effectively concluded that the Department lacked statutory authority to promulgate § 28a.8(5).

Fiscal Impact

Commonwealth

 This proposed rulemaking will not have appreciable fiscal impact upon the Commonwealth.

Political subdivisions

 This proposed rulemaking will not have appreciable fiscal impact on political subdivisions.

Private sector

 This is addressed under the ''Persons Likely to be Affected'' in this preamble.

General public

 This proposed rulemaking will not have appreciable fiscal impact on the general public.

Paperwork Requirements

 This proposed rulemaking will not have impact on the paperwork handled by the Department or the impacted kennels.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on September 11, 2017, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Committees on Agriculture and Rural Affairs. A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the rulemaking by the Department, the General Assembly and the Governor.

Effective Date

 This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.

Public Comments

 Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Kristen Donmoyer, Director, Bureau of Dog Law Enforcement, Department of Agriculture, 2301 North Cameron Street, Harrisburg, PA 17110-9408, (717) 705-8896 within 30 days of the publication of this proposed rulemaking in the Pennsylvania Bulletin.

Contact Person

 The contact person for technical questions regarding this proposed rulemaking is Kristen Donmoyer, Director, Bureau of Dog Law Enforcement, Department of Agriculture, 2301 North Cameron Street, Harrisburg, PA 17110-9408, (717) 705-8896.

RUSSELL C. REDDING, 
Secretary

Fiscal Note: 2-190. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 7. AGRICULTURE

PART II. DOG LAW ENFORCEMENT BUREAU

CHAPTER 28a. COMMERCIAL KENNEL CANINE HEALTH REGULATIONS

GENERAL PROVISIONS

§ 28a.8. Flooring.

 For dogs over 12 weeks of age, the flooring in commercial kennels must meet the following standards:

*  *  *  *  *

 (4) Additional flooring requirements.

*  *  *  *  *

 (viii) Flooring may not be made of or coated with materials that can be chewed and readily ingested, or are toxic to dogs, or both.

[(5) Nursing mothers. Primary enclosures, including whelping boxes, housing bitches with nursing litters or housing dams or foster dams with puppies under 12 weeks of age must be constructed so that at least 50% of the flooring of the primary enclosure complies with the standards established under section 207(i)(3) of the act.]

[Pa.B. Doc. No. 17-1575. Filed for public inspection September 22, 2017, 9:00 a.m.]



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