Re: Temporary Guidelines Standards for Commercial Kennels as published at the 39 Pa.B 310.
February 6, 2009
Department of Agriculture, Bureau of Dog Law Enforcement
2301 North Cameron Street, Room 102
Harrisburg, PA 17110
To Whom It May Concern:
We appreciate the work the Canine Health Board (Board) has done in reviewing health standards under Section 221 of the Dog Law (Act 119). Most of the requirements of the Temporary Guidelines (Guidelines) address areas affecting the health of dogs and are generally reasonable. However, we believe that there are areas where the Guidelines present problems because they are vague and do not provide sufficient guidance to the public, the fiscal impacts are misstated, there is internal conflict among the Guidelines, and the Guidelines established by the Board are ultra vires.The notice published at 30 Pa.B 310 states that the Guidelines “will not impose significant additional fiscal impacts upon the Bureau of Dog Law Enforcement (Bureau). However, once the final regulations are in place additional fiscal impacts will be imposed” and “will not impose additional costs on the regulated community” and that there will be no fiscal impact on the purchasers of dogs. They state that there will be fiscal implications from the final regulations. Insofar as the law requires that the Department “shall promulgate the temporary guidelines as a regulation concurrently with publication in the Pennsylvania Bulletin,” the proposed regulations will mirror these Guidelines. Therefore, we will comment on the cost implications were the Guidelines to be enforced as regulations.The document also states that the Guidelines “will not result in a substantial increase in paperwork.” Insofar as the proposed regulations are expected to mirror these Guidelines, we will comment on the paperwork implications of the Guidelines.Act 119 limits the reach of the Board to distinct, limited areas. Section 211 establishes the Board, its process and the scope of its powers. Under Subsection (f) the purpose of the Board is stated as “to determine the standards based on animal husbandry practices to provide for the welfare of dogs under Section 207(h)(7) and (8) and (i)(3).” In addition, under Section 207 (i)(5) the Board may, upon a commercial kennel owner’s request, consider “on a case-by-case basis for an alternative means of allowing clearance from a primary enclosure to the exercise area or exercise that is required in paragraphs (4) and (6)(i) if the kennel owner presents the board with a plan that the board determines is verifiable, enforceable and provides for exercise equal to or greater than that which the dogs would receive under paragraphs (4) and (6)(i).” Insofar as the proposed regulations issued by the Department are required by law to be issued based on the Guidelines, we must evaluate the authority of the Board to establish these Guidelines. Despite the requirement of the law that the Guidelines serve as the basis for the regulations published in the Pennsylvania Bulletin, any Guidelines issued which are not within the authority of the Board should not be the basis for the acceptance of final form regulations derived from them. It is inappropriate to bootstrap Guidelines that are ultra vires into final form regulations when the Guidelines were invalid ab initio.
Section 28.1 Ventilation. Regarding the ventilation standards, Section 207(h)(7) 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.” Furthermore, it provides that the ”relative humidity must be at a level that ensures the health and well-being of the dogs housed therein.” It authorizes the Canine Health Board (the Board) to “determine auxiliary ventilation to be provided if the ambient air temperature is 85 degrees F or higher “ and authorizes it to determine the “appropriate ventilation, humidity and ammonia ranges. . . .”The Section 207(h)(7) does not authorize the Board to prescribe the methods of achieving the standards it determines are appropriate. It is authorized only to determine the relevant standards related to the health and well-being of dogs housed in the kennels based on animal husbandry practices.From that interpretation, it is our position based on the statute that the Board erred in requiring mechanical ventilation systems for use in commercial kennels in a number of subsections. Furthermore, it is well documented in literature related to animal husbandry that building design and non-mechanical means may be used to provide adequate levels of ventilation. Since animal husbandry standards are established as the foundation upon which Guidelines are to be based, this standard is inappropriate. This comment does not express an opinion on whether it is appropriate for the Department to write standards covering this area, only that the Board may not prescribe the use of mechanical ventilation.If this standard were implemented in final regulations, it would require retrofitting mechanical systems in commercial kennels at a significant cost to the regulated community and would result in cost increases to the general public. There is also the likelihood of a fiscal impact on the government, since the operation of the Bureau is funded solely by revenue from the restricted fund. If kennels were to close due to the fiscal impact on them, it would reduce funding for Bureau operations.Similarly, the requirement to keep the temperature below 86 degrees in Subsection 2 is beyond the scope of the Board’s authority defined in the statute. The statute quoted above authorizes them to “determine auxiliary ventilation . . . if the ambient temperature is 85 degrees or higher.” Even if limiting the temperature in a commercial kennel were within the authority of the Board, the only way to ensure meeting the standard would be to use air-condition systems. The use of air-conditioning to maintain an 85 degree temperature is not determining alternate ventilation required when the temperature exceed 85 degrees, it is requiring that the temperature not exceed 85 degrees. If that was the intent of the legislature, they could have simply placed that restriction in the statute. We believe that the legislative history of the act makes it clear that the intent of the language in the statute was to have the Board do exactly what the statute requires, i.e. determine additional ventilation requirements at temperatures above 85 degrees to reduce the impact of higher temperatures on dogs in the kennels.An ancillary problem with the air-conditioning requirement is that it will have a disparate impact on a protected class – those whose religious beliefs prohibit or severely restrict the use of electricity. Any regulation that would require violation of their religious beliefs must be subject to significant scrutiny. In cases like this, where it is apparently beyond the authority granted the Board, it cannot be supported.If this standard were implement in final regulations, it would require retrofitting air-conditioning systems in commercial kennels at a significant cost to the regulated community and would result in cost increases to the general public. There is also the likelihood of a fiscal impact on the government, since the operation of the Bureau is funded solely by revenue from the restricted fund. If kennels were to close due to the fiscal impact on them, it would reduce funding for Bureau operations.The requirements of Subsections (3) and (4) are confusing. It is unclear where the temperature is to be measured. One possibility is that the temperature will be measured at the standing shoulder height, in their enclosures, for a randomly chosen 10 percent of the dogs. This appears to be what is meant in Subsection (6) where there is a specific reference to the measurement being done in each primary enclosure of the the 10% of the dogs. Another interpretation is that the average standing shoulder height of a randomly selected 10 percent of the dogs will be used to measure the temperature, but in unspecified locations. The former interpretation will significantly increase the workload of the dog wardens; in the latter case, more specificity is required.If this Guideline were implemented in final form regulations, it would require 10 independent measurements in a 100-dog kennel, increasing the time for each inspection and result in the need for more staff by the Department to perform its duties and for the purchase of digital thermometers for wardens to permit accurate temperature measurement. Since the funds to cover this come from a restricted account, there will be no impact on the general fund, but costs to the regulated community and all dogs owners might have to increase to cover the additional costs to the Department.The requirements of Subsection (5) are clear and specific. If this standard were implement in final regulations, it would require significantly increasing the time for each inspection since the ammonia detector would have to be reset between each measurement and calibrated periodically. In a 100-dog kennel, the Guideline would require 18 separate measurements. This would result in the need for more staff by the Department to perform its duties and the purchase of multiple ammonia detectors. Since the funds to cover this come from a restricted account, there will be not impact on the general fund, but costs to the regulated community and all dogs owners might have to increase to cover the additional costs to the Department.The standard in Subsection 6 is internally inconsistent and appears arbitrary, capricious and an abuse of authority. It requires that CO be kept below detectable levels in all areas of the kennel and requires detectors able to monitor the level throughout the entire facility. These detectors must meet the standards set in UL 2034 or IAS 6-96. However, according to the U.S. EPA, the air quality standard for outdoor air is 9 parts per million (40,000 micrograms per meter cubed) for 8 hours, and 35 parts per million for 1 hour. While the EPA states that there are no standards agreed upon for indoor air quality, they recognize that the CO level near a properly adjusted gas stove is 15 parts per million. Therefore, it is improper to establish a standard for acceptable levels of CO as being undetectable, both because there are no recognizable standards for indoor CO levels in either human or animal husbandry practices and the mandated level is below the levels the EPA determines exist in both outdoor and indoor air in general.Its reference to the UL Standard 2034 is inappropriate since the standard states in 1.1 that it covers detectors “in ordinary indoor locations of dwelling units, including recreational vehicles, mobile homes and recreational boats with enclosed accommodation spaces and cockpit areas.” These are clearly not animal husbandry uses. If this standard were applicable, it permits a carbon monoxide concentration of 70 parts per million with an alarm response time of between 60 and 240 minutes as an acceptable operating level. The acceptable response time decreases to between 4 and 15 minutes at 400 parts per million. If CO alarms are mandated, the acceptable levels should be within the functional parameters of the alarms. We do not comment on the standards regarding IAS 6-96 since we have been unable to obtain a copy to determine what it requires. However, we expect that our comments would parallel those regarding UL 2034.In Subsection (7), we note again our objection to the requirement for mechanical systems. Furthermore, we believe the requirement in the subsection, as worded, would create delays taking corrective action. Not only is the Bureau unstaffed on evenings and weekends, but also it may not be possible or necessary to obtain this information from the Bureau. We believe better language to protect the health of the animals would be: “In the event of a ventilation system malfunction, the kennel owner or manager shall take immediate steps to correct the malfunction and shall notify the Bureau of Dog Law Enforcement of the malfunction during the Bureau’s next regular business hours.” This would permit follow-up by the Bureau without requiring it to be expert in all types of ventilation system repair.Subsection (8) is beyond the scope of the authority of the Board. Standards for particulate matter are not covered by the statutory authorization of the Board under Section 207(h)(7) which covers ventilation. The scope of the authority of the Board is limited to only those areas specified in the statute. This area, although affecting the health and welfare of the animals in the kennel, is not within the authorized scope of the Board. Furthermore, as noted in IRRC’s February 2009 Newsletter, a regulation may be deficient where it conflicts with or duplicates a statute. The statute clearly contains cleanliness standards for commercial kennels in section 207(h)(14). This is the controlling authority and there is no authority in the law for the Board to issue any regulations in this area.The approach in Subsection (9) is interesting. Clearly air change may be set at a required level. However, the steps in Subparagraph (A) do not measure air changes. At best, they measure potential air changes using some unspecified formula. Without the formula, the regulated party has no way of determining independently if the kennel is in compliance before an inspection occurs. The only way to enforce this requirement is to actually measure air changes at the site as required in (ii) and the only way to determine compliance is to apply the formula to the actual airflow. It also is not clear what the relationship is between this Subsection and Subsection 12. This subsection states that air changes must occur with fresh air; subsection 12 refers to the use of recirculated air. If there is sufficient fresh air being circulated, it is not clear how recirculated air in addition to the fresh air requires any treatment. If filtered, recirculated air is permitted, why is it not included in the calculation of air changes?Subsection 10 attempts to expand the authority of the Board to areas of animal stress by bootstrapping it to the authority to set ventilation standards. However, correlation is not causation. The authority of the Board extends only to setting appropriate levels specified in the statute. Although this is a valid health concern and stress reduction does affect animal health, it is not covered by the scope of the statutory authority of the Board. This comment does not express an opinion on whether it is appropriate for the Department to write standards covering this area, only that the Board may not develop standards concerning control of stress.Subsection 11 is unnecessary in that it restates the provision of the statute or other regulations in all respects.Subsection 12 has been addressed in the comments on Subsection (9).Subsection (13) is unclear as to its meaning. Most codes establish standards for new construction. Existing buildings are permitted to continue operating under the codes in place when they were constructed until there is a major renovation. At that time, upgrading systems to the new code is required. We have no objection if the intent of this subsection is to follow the standard building code and zoning practice as it applies to buildings used for animal husbandry purposes. We believe that a requirement to upgrade existing buildings to current standards is contrary to standard industry and governmental practices and would cause significant fiscal harm to the regulated community.To be enforceable, subsection (14) should provide more specific information on acceptable standards. It is too vague to provide a basis for meaningful enforcement or to inform the regulated community of exactly what standard they must meet.
Section 28.2 Lighting. Section 207(h)(8) states: “Housing facilities for dogs must be lighted well enough to permit routine inspection and cleaning of the facility and observation of the dogs. Animal areas must be provided a regular diurnal lighting cycle of either natural or artificial light. Lighting must be uniformly diffused throughout housing facilities and provide sufficient illumination to aid in maintaining good housekeeping practices, adequate cleaning and observation of animals at any time and for the well-being of the animals. Primary enclosures must be placed so as to protect the dogs from excessive light. The appropriate lighting ranges shall be determined by the Canine Health Board.”Despite the statement made in the preface to Subsection (1), the subsection goes beyond the authority of the Board, which is authorized only to establish lighting ranges. The statute explicitly permits either artificial or natural light and the Board has no authority to require natural light. Even if it had the authority to prescribe natural lighting, it would lack the authority to require transparent windows in Paragraph (ii), as contrasted with translucent windows, since it is only the level of light that may be regulated. The same argument is made with respect to the amount of glazed area in Paragraph (iii). Paragraph (iv) duplicates the statutory language and is unnecessary. Paragraph (v) is beyond the scope of authority of the Board in that it does not cover lighting ranges in housing areas or primary enclosures. Shade is an important health requirement for dogs outside in the heat and this comment does not express an opinion on whether it is appropriate for the Department to write standards covering this area, only that the Board may not develop standards concerning shade requirements.Paragraph (vi) faces the same objections raised with respect to Paragraph (ii). The reach of the Board’s authority under section 207(i)(5) extends to determining that a plan is verifiable, enforceable and provides for exercise equal to or greater than that which the dogs would be provided should the Department grant an exemption from outdoor exercise under Section 207(i)(6)(x)(B). There is nothing in the statute to suggest that the Board has the authority to proscribe different lighting requirements for kennels where waivers are granted. Furthermore, transparent windows set at a height to permit each dog to have an unobstructed view of the outdoor environment could prove dangerous since they would have to be set at or slightly above the dog’s eye level. This might result in dogs trying to exit through a closed or partially opened window, resulting in injury to the dog. This comment does not express an opinion on whether it is appropriate for the Department to write standards covering this area, only that the Board may not develop standards that must be met in kennels where the Department has granted a waiver from outdoor exercise.Paragraph (vii) also exceeds the authority of the Board in that lighting type is not something the Board is authorized to specify. Exposure to full spectrum lighting is desirable for dogs not having access to outdoor exposure to natural lighting. This comment does not express an opinion on whether it is appropriate for the Department to write standards covering this area, only that the Board may not develop standards that must be met in kennels where the Department has granted a waiver from outdoor exercise.With respect to Paragraph (i) of Subsection (2), we raise the same issue regarding the requirement for full spectrum lighting and do not express an opinion regarding the foot-candle standardWe do not challenge Paragraph (ii), but wonder at the need for any level of light at night. If lighting is needed to inspect or perform duties, lights may be turned on to provide sufficient lighting. We also believe the phrasing of the paragraph is unclear as worded.Paragraph (iii) is superfluous in that is duplicates the statute.Paragraphs (iv), (v) and (vi) are beyond the scope of authority of the Board under the law. This comment does not express an opinion on whether it is appropriate for the Department to write standards covering these areas, only that the Board may not develop standards in the areas proposed.Our comments on Subsection (3) are the same as those made with respect to Subsection (13) of section 28.1.
Section 28.3 Flooring. Section 207(i)(3)(i) specifies that flooring “shall be strong enough so that the floor does not sag or bend between the structural supports, shall not be able to be destroyed through digging or chewing by the dogs housed in the primary enclosure, shall not permit the feet of any dog housed in the primary enclosure to pass through any opening, shall not be metal strand whether or not it is coated, shall allow for moderate drainage of fluids and shall not be sloped more than 0.25 inches per foot.” It further authorizes permissible slatted flooring for commercial kennels in section 207(i)(3)(ii) and authorizes the Board in subparagraph (iii) to approve additional flooring options that meet the provisions of Section 207(i)(3)(i).Subsections (1), (2), (3), (4), (6) and (8) properly follow the Board’s scope of authority. However, it would be preferable to list the specific sections within the dog law relevant to the flooring standards, rather than refer to the entire dogs law since this provides little guidance to the regulated community regarding where the other standards are located.Our comments to Subsection (5) are the same as those made with respect to Subsection (13) of Section 28.1 and Subsection (3) of Section 28,2.The provisions of subsection (7) are superfluous in that they are duplicative of the law.Despite the short time frame within which the Board had to issue these Guidelines, we had hoped that the Board would be able to consider and approve additional flooring options that were in conformance with Section 207(i)(3)(i). Absent any other approved flooring, the provision of this section will have a significant fiscal impact on the regulated community and will result in a fiscal impact on the public through increased cost for dogs sold.