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RULES AND REGULATIONS

Title 7—AGRICULTURE

DEPARTMENT OF AGRICULTURE

[ 7 PA. CODE CH. 28a ]

Commercial Kennel Canine Health Regulations

[48 Pa.B. 2623]
[Saturday, May 5, 2018]

 The Department of Agriculture (Department) amends § 28a.8 (relating to flooring).

Effective Date

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

Statutory Authority

 This final-form 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.

Background and Summary

 This final-form rulemaking deletes former § 28a.8(5), as Commonwealth Court determined this paragraph contradicted the express statutory provisions of the act and violates the legislative intent of the act.

 Section 28a.8(5), regarding nursing mothers, effectively allowed 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 did 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 Keith et al. v. Department of Agriculture, 116 A.3d 756 (2015). On September 9, 2016, Commonwealth Court granted summary judgment for the petitioners, and specifically determined that § 28a.8(5) directly contradicted express provisions of the act and violated the legislative intent of the act.

Response to Comments

 Notice of proposed rulemaking was published at 47 Pa.B. 5951 (September 23, 2017), with a 30-day public comment period. No comments were received from the public, the Independent Regulatory Review Commission (IRRC) or the House and Senate Committees on Agriculture and Rural Affairs.

Fiscal Impact

Commonwealth

 This final-form rulemaking will not have appreciable fiscal impact upon the Commonwealth.

Political subdivisions

 This final-form rulemaking will not have appreciable fiscal impact on political subdivisions.

Private sector

 This final-form rulemaking will apply to operators of Department-licensed commercial kennels. There are currently approximately 78 licensees. The Department is aware, through onsite inspections, that these kennels are in compliance with the flooring requirements and additional changes or expenses will not result from the deletion of § 28a.8(5).

General public

 This final-form rulemaking will not have appreciable fiscal impact on the general public.

Paperwork Requirements

 This final-form 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 the notice of proposed rulemaking, published at 47 Pa.B. 5951, to IRRC and the Chairpersons of the House and Senate Agriculture and Rural Affairs Committees for review and comment.

 Under section 5(c) of the Regulatory Review Act, the Department is required submit to IRRC and the House and Senate Committees copies of comments received during the public comment period, as well as other documents when requested.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on March 21, 2018, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5(g) of the Regulatory Review Act, the final-form rulemaking was deemed approved by IRRC effective March 21, 2018.

Additional Information

 Additional information may be obtained from Kristen Donmoyer, Director, Bureau of Dog Law Enforcement, Department of Agriculture, 2301 North Cameron Street, Harrisburg, PA 17110-9408, (717) 705-8896.

Findings

 The Department finds that:

 (1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

 (2) A public comment period was provided as required by law and no comments were received.

 (4) The amendments to the regulations of the Department are necessary and appropriate for the administration of the authorizing statute.

Order

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

 (a) The regulations of the Department, 7 Pa. Code Chapter 28a, are amended by amending § 28a.8 to read as set forth at 47 Pa.B. 5951.

 (b) The Department shall submit a copy of this order and 47 Pa.B. 5951 to the Office of the Attorney General and the Office of General Counsel for approval as required by law.

 (c) The Department shall submit this order and 47 Pa.B. 5951 to IRRC as required by law.

 (d) The Department shall certify this order and 47 Pa.B. 5951 and deposit them with the Legislative Reference Bureau as required by law.

 (e) The regulations shall take effect immediately upon publication in the Pennsylvania Bulletin.

RUSSELL C. REDDING, 
Secretary

 (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 48 Pa.B. 2029 (April 7, 2018).)

Fiscal Note: Fiscal Note 2-190 remains valid for the final adoption of the subject regulation.

[Pa.B. Doc. No. 18-683. Filed for public inspection May 4, 2018, 9:00 a.m.]



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