RULES AND REGULATIONS
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 21]
[33 Pa.B. 1329]
The Department of Agriculture (Department), under the authority of the Dog Law (act) (3 P. S. §§ 459-101--459-1205), amends Chapter 21 (relating to general provisions; kennels; licensure; dog-caused damages) to read as set forth in Annex A.
The Department has the power and authority to amend and adopt these regulations. This authority includes:
(1) The general duty to implement the policy of the act set forth in section 101 of the act (3 P. S. § 459-101), which states this is an act ''. . . relating to dogs, regulating the keeping of dogs; providing for the licensing of dogs . . . providing for the abandonment of animals'' and ''providing for . . . liability of the owner of keeper of dogs for such damages.'' The Department has a duty to assure the proper and humane licensure of dogs, to allow for the proper identification of dogs and a means by which a person may obtain reimbursement for certain dog-caused damages.
(2) The specific authority conferred by section 201 of the act (3 P. S. § 459-201) grants the Department the power to promulgate regulations regarding the lifetime licensure of dogs.
(3) The specific authority to impose and enforce penalty provisions of the act set forth in Articles II--IX of the act (3 P. S. §§ 459-201--459-911-A).
Need for the Regulations
The current lifetime licensure regulations in Chapter 21 became effective October 12, 1985. The act was amended and the amendments became effective December 11, 1996. The amendments to the act included amendments to the licenses, tags and kennels provisions in Article II of the act (3 P. S. §§ 459-200--459-219), which contain the lifetime license provisions at section 201(b) of the act. The lifetime licensure provisions of the current regulations require that a dog be tattooed with a number assigned by the county treasurer. While these regulations were consistent with the requirements set forth by the Legislature, those requirements were changed by the 1996 amendments to the act. The act now allows for the lifetime licensure of dogs through the implantation of a microchip. The amendments to the lifetime licensure regulations will allow the use of a microchip as an alternative to the tattoo identification. The regulations must be amended to set forth the procedure for obtaining a lifetime license when a microchip is implanted in the dog. The Department also amended the tattoo provisions to clarify the lifetime licensure process. The amendments to § 21.51 (relating to lifetime dog license issuance) required the Department to revise § 21.1 (relating to definitions).
Additionally, the Department amended §§ 21.4, 21.52 and 21.57 (related to penalties; recordkeeping for lifetime dog licenses; and kennel tags) to make them consistent with the act and the amended regulations. The amendments to § 21.4 were necessary to make it consistent with the same penalty provision in section 903 of the act (3 P. S. § 459-903), which had been amended. The Department originally proposed to repeal the section of the regulations relating to penalties because the penalties were set forth in the act. However, after receiving numerous comments from the regulated community requesting that all the penalty provisions set forth in the act be consolidated in the regulations, the Department decided to reiterate and consolidate the penalty provisions. This will accommodate the regulated community and the courts by providing an easy reference to penalty provisions that apply to specific areas of the act. It will also aid the Department in enforcement of the act and the regulations.
Section 21.53 (relating to transfer of lifetime dog licenses) was amended to clarify the process required when the ownership of a dog with a lifetime license is transferred or the dog is moved to a new address.
Notice of proposed rulemaking was published at 32 Pa.B. 66 (January 5, 2002) and provided for a 30-day public comment period. Under section 902 of the act (3 P. S. § 459-902), the Department held a public hearing on December 14, 2000, with regard to the proposed rulemaking. Notice of the public hearing was published at 30 Pa.B. 5543 (October 28, 2000). In addition, members of the Dog Law Advisory Board (Board) and other known interested parties, such as those who regularly attend public meetings of the Board, were notified by regular mail. An official record of the public hearing is available for public inspection.
The Department received numerous comments regarding the proposed rulemaking and made extensive revisions to the proposed rulemaking based on those comments. The Department decided to distribute the revised regulations to all commentators for their review prior to submitting the revised regulations into the final-form rulemaking process. The Department received additional comments and those comments are included in this section of the Preamble.
Comments were received from the Independent Regulatory Review Commission (IRRC), the Honorable Raymond Bunt, Jr., Majority Chairperson, Agriculture and Rural Affairs Committee; the Honorable Peter J. Daley, Minority Chairperson, Agriculture and Rural Affairs Committee; Virginia S. Richardson, President, Pennsylvania Association of County Treasurers (PACT); Dotsie Keith, Legislative Chairperson, Pennsylvania Federation of Dog Clubs (PFDC), Incorporated; Johnna L. Seeton, Chairperson, Pennsylvania Legislative Animal Network (PLAN); Anne Irwin, President, Federated Human Societies of Pennsylvania and Executive Director of Bucks County Society for the Prevention of Cruelty to Animals (BCSPCA); Jeff Steed, DVM (Dog Law Board Member) Manheim Pike Veterinary Hospital, Incorporated (MPVH); James R. Rummel, VMD, President, Pennsylvania Veterinary Medical Association (PVMA); Hannis Stoddard III, DVM, President and Founder, Avid Identification Systems Incorporated. The Department thanks all of those who commented on these regulations. The comments were insightful and helped the Department clarify the regulations and develop regulations that meet the parameters of the act and fit the needs of the regulated community.
A. Economic and Fiscal Impact
1. IRRC commented concerning question #18 on the Regulatory Analysis Form. IRRC commented, the Department stated this rulemaking will not impose any compliance costs on local governments. However, county treasurers assert they will incur costs for updating computer programs to accommodate both the lifetime license number and the microchip number. IRRC stated the Department should include an analysis of the costs for counties to update their computer programs when it submits the final-form regulation.
2. IRRC pointed out that subsection (d)(3) of the proposed rulemaking refers to a 50¢ issuance fee, while section 200(b) of the act (3 P. S. § 459-200(b)) authorizes a $1 fee. IRRC has asked the Department to remedy this inconsistency in the final-form rulemaking.
1. PACT commented that because the microchip number and the lifetime license number will be two different numbers, their computer programs would need to be modified. PACT believes these expenses should be the responsibility of the Department.
2. PACT commented that § 21.51(d)(3) states ''The 50¢ issuance fee shall be retained by the county treasurer for his service in forwarding the refund.'' The issuance fee set by the act is now $1. PACT asked if the Department intended to decrease the county treasurer's fee?
In response to the previous concerns regarding the cost associated with recording both the lifetime license tag number and the microchip number, in the Regulatory Analysis Form submitted with the final-form rulemaking the Department will include an analysis of the need and cost for counties to upgrade their computer programs to comply with the recordkeeping requirements of the proposed rulemaking. In addition, the Department does not believe any extensive upgrading of county treasurers' systems will be necessary. Under section 200(e) of the act, the Department is responsible for supplying the forms on which the dog license records are kept. The Department will work with the county treasurers to devise a form, which will not require an extensive upgrade of their computer systems. The format could be as simple as requiring the county treasurer to differentiate the two numbers by placing a dash or slash between them. With regard to the county treasurers' assertion that any expenses involved with the upgrade should be the responsibility of the Department, the act, specifically in sections 1001(b) and 1002(b) (3 P. S. §§ 459-1001(b) and 459-1002(b)), sets forth the parameters for expenditure of funds from the Dog Law Restricted Account. Any compensation would have to fit into one of the criteria delineated in those sections of the act.
With regard to concerns expressed by IRRC and PACT about the level of compensation for county treasurers and agents, set forth in § 21.51(d), this was an oversight on the part of the Department when amending the current regulations. The language set forth in the proposed rulemaking is the same language that appears in the current regulations. The 1996 amendments to the act changed the level of compensation for processing of dog licenses to $1. The Department has added language throughout the final-form regulations referring to the ''appropriate fees, as set forth at sections 201 and 200(b) of the Act.'' This should address PACT's concern and make the compensation level for county treasurers and agents processing dog licenses consistent with those set forth in section 200(b) of the act.
B. Application and Issuance Process--Clarity, Consistency with Statute
1. IRRC agreed with several commentators that the procedure set forth in the proposed rulemaking is too complicated with regard to the issuance of lifetime licenses for microchipped dogs. IRRC further agrees the process should be more streamlined and concurs with other commentators' suggestions that the dog owner should be able to have a microchip implanted in his dog prior to obtaining a lifetime license number and tag from the county treasurer or agent. Commentators suggest the owner could have a microchip implanted in the dog and then take a microchip verification or certificate to the office of the county treasurer or agent, at which point, the microchip identification number could be recorded and the lifetime license and tag issued.
2. IRRC suggested subsections (b)(2) and (7) and (c)(1) of the proposed rulemaking should be amended to clarify that the lifetime license number will be assigned by the county treasurer. In instances where a microchip is used as the permanent means of identification, the county treasurer will record the microchip number, as well as the assigned lifetime license number, on the license certificate.
3. IRRC suggested subsection (c) of the proposed rulemaking should be amended to address the process to be followed by: (1) dog owners who had their dog microchipped before the effective date of the regulation; and (2) new dog owners of previously microchipped dogs. The final-form rulemaking should address the process for these parties to obtain lifetime dog licenses.
4. IRRC believed subsection (c)(3) is confusing. IRRC suggested the sentence ''. . . person implanting the microchip shall record the identifying number of the microchip on the tattoo/microchip license certificate'' should be amended to clarify the intent of this provision.
5. IRRC commented that subsection (d)(1) contains a requirement that the lifetime license applicant must remit the ''appropriate fee,'' set forth in act, to the county treasurer or agent. IRRC believed this paragraph should also contain a cross-reference to the fees established in section 201(b) of the act.
6. IRRC questioned whether the reference to ''microchip-license number'' in subsection (d)(2) of the proposed rulemaking should be changed to ''lifetime license number.''
7. IRRC commented that in subsection (e), the phrase ''. . . with the county treasurer's copy behind filed in sequence'', was confusing and requested that the Department clarify this phrase in the final-form rulemaking.
1. The PFDC pointed out the Department appears to assume the current method and procedures being utilized for the lifetime licensure of dogs concerning tattoos as the means of permanent identification of dogs can be utilized for microchips. The PFDC stated microchips already have a manufacturer's number embedded in them and therefore it is impossible for a county treasurer to assign a number for the microchip itself. The PFDC suggests it will be necessary to ''. . . rewrite these rules and regulations to reflect the two different methods, tattooing and micro chipping . . . .''
2. The PFDC suggested--with regard to the process for microchipping--''. . . the county treasurer would have to have a system whereby the dog would be assigned a state or county number that would appear on both the paper work and the license tag itself and then the microchip number would also appear on the paper work in order to identify the dog by cross referencing the two numbers.''
1. PLAN commented that microchips are already numbered when they are manufactured and therefore the number assigned by a county treasurer or an agent for a lifetime license--where a microchip will be used as the permanent means of identification--must be linked to the implanted microchip number to allow the two different numbers to be cross-referenced. PLAN stated, ''[T]hus, a dog with a lifetime microchip-license will carry two numbers for identification. The same dog will wear two tags, one with the lifetime license number, and the other with the actual microchip number. . . .''
2. PLAN commented that provisions must be added to the regulations to allow for the processing of dogs that already have microchips implanted. PLAN suggested proof of microchipping should be mandatory before an application for a lifetime license can be issued and the process initiated.
3. PLAN requested the addition of the word ''altered'' to the identifying license certificate so the applicant or county treasurer can check a box as to whether the dog has been spayed or neutered (second sentence of old § 21.51(b)). PLAN wanted to assure applicants and county treasurers identify the dog properly as an ''intact'' male or female or a ''spayed, neutered or altered'' male or female.
1. The BCSPCA pointed out that microchips are already numbered when they are manufactured and therefore the number assigned by a county treasurer or an agent for a lifetime license--where a microchip will be used as the permanent means of identification--must be linked to the implanted microchip number to allow the two different numbers to be cross-referenced. The number on the lifetime tag issued by the county treasurer will be different from the number on the microchip.
2. The BCSPCA stated, ''[B]ecause of how microchips are manufactured and distributed there will need to be some differences between how lifetime licenses are issued for microchips and how they are issued for tattoos.''
3. The BCSPCA commented that provisions must be added to the regulations to allow for the processing of dogs that already have microchips implanted. The BCSPCA suggested that owners of dog, already having microchips implanted, should be able to present proof of microchipping, ''. . . either in the form of the original paperwork from the vet or animal shelter, showing the chip number and manufacturer, or in the form of a verification from a vet or animal shelter that the animal is microchipped . . .'' and identifying the microchip number and manufacturer.
MPVH, Jeff Steed, D.V.M. (Dog Law Advisory Board Member)
1. The MPVH commented that the regulations, as written, might accomplish the intended results. However, the MPVH agreed with other commentators who stated the proposed regulations are confusing and more complicated than necessary. The MPVH's biggest concern was the confusion arising over the assignment of a microchip-license number. The microchip number is different from the lifetime license number that will be issued by the county treasurer. The MPVH felt the two different numbers are easily confused as the regulations currently read and that the Department needs to make it clear they are two different numbers. The MPVH suggested the language of the final-form regulations should be worded more clearly to reflect the fact that a microchip already has a unique encoded I.D. number and therefore the number assigned by a county treasurer or an agent for a lifetime license--where a microchip will be used as the permanent means of identification--will be different from the microchip number. The number on the lifetime tag issued by the county treasurer will be different from the number on the microchip. The MPVH suggested the county treasurer or agent and the Department should keep a record of both numbers and use the lifetime license number to cross reference the microchip number and visa-versa.
2. The MPVH commented that the procedure for obtaining a lifetime license when a microchip will be used as the means of permanent identification, should be simplified. The MPVH suggests the owner of the dog should be allowed to obtain a certificate or verification that a microchip has been implanted in the dog. The certificate or verification would set forth the unique I.D. number of the microchip. The dog owner could then take the certificate or verification of microchipping to the county treasurer or agent and apply for a lifetime license. This would also address the problem where dogs were microchipped prior to the regulations being promulgated.
3. The MPVH stated the Commonwealth database must include the unique microchip I.D. number and its associated lifetime license number for the process to work as intended.
1. The PVMA commented that the regulations presented several points of confusion. The first point of confusion was the incorrect assumption--brought about by the current wording of the regulations--that the ''microchip number'' must be preassigned by the county treasurer or agent and have the two digit county code placed in front of it. The PVMA pointed out that each microchip has a unique, unalterable number. The PVMA would like the Department to clarify the language, in the final-form regulation, to reflect the fact that a distinct number, separate from the microchip number, will be issued by the county treasurer or agent and two separate numbers--the microchip number and the lifetime license number issued by the county treasurer or agent will be recorded. These numbers will cross-reference one another. The PVMA suggests a possible language change to address the confusing the issue. The PVMA stated that using the term ''microchip number'' instead of the term ''microchip identification number'' might simplify and clarify the regulations.
2. The PVMA commented that the Department should clarify the procedure for issuing a lifetime license where the dog has previously had a microchip implanted. The PVMA believed the Department should clearly state that, in this case, the dog owner could present verification of microchipping, such as a receipt from the veterinarian that implanted the microchip, to the county treasurer or agent.
3. The PVMA would like the Department to include a provision that would allow the application for the lifetime license to be completed after the microchip was implanted instead of requiring the dog owner to complete the lifetime license application prior to the implantation of a microchip.
Honorable Raymond Bunt, Jr., Majority Chairperson, Agriculture and Rural Affairs Committee
1. The Honorable Raymond Bunt, Jr. agreed with other commentators that amendments must be made to the language of the proposed rulemaking to clearly identify the process of assigning a lifetime license number to a dog that has been or will be permanently identified with a microchip.
Although the substantive content and intent of the proposed rulemaking has not changed, the Department, based on the numerous comments regarding clarity of the proposed rulemaking, has done an extensive revision to the structure of the proposed regulation. The revisions include breaking § 21.51 of the final-form regulation down into various new subsections to add clarity to the application process and adding language and new subsections to § 21.53 of the final-form rulemaking to clarify the process to be followed when a dog with a lifetime license is transferred to a new owner or relocated outside the county in which the lifetime license was issued.
Section 21.51 of the final-form rulemaking includes separate subsections setting forth the licensure procedure to be followed when using a tattoo as the means of permanent identification versus the licensure procedure to be followed when using a microchip as the means of permanent identification. In addition, the duties of the license applicant and the county treasurer or agent have, for the most part, been set forth in separate subsections. Furthermore, § 21.51 of the final-form rulemaking allows an owner to have a microchip implanted in his dog prior to obtaining an application for a lifetime license. A dog owner may have a microchip implanted and then take a microchip verification form or certificate to the office of the county treasurer or agent, at which point, the microchip identification number will be recorded and the lifetime license and tag issued. The final-form rulemaking makes a clear distinction between the microchip number, which will be recorded by the county treasurer and the lifetime license number, which will be assigned by the county treasurer. The county treasurer will then record both numbers for its records. The two numbers will act as a cross-reference to allow the dog to be identified by either number. The Department also established a separate subsection addressing the procedure to be followed by the owner of a dog which had a microchip implanted prior to these regulations taking effect.
There were other comments submitted regarding § 21.51, which the Department considered but which did not result in revisions to the final-form rulemaking. One comment concerned the issuance of two tags for dogs receiving a lifetime license. Contrary to the statement by the commentator that the dog will wear two tags, the dog will only wear one tag--the lifetime license number issued by the county treasurer or agent. The microchip number will be recorded by the county treasurer or agent and will act as a cross-reference to the lifetime license number assigned by the county treasurer. Requiring a second tag would add an additional unnecessary cost and would not give the dog any additional protection. The microchip is implanted in the dog and where necessary to identify the dog--such as where the dog has lost its collar with the lifetime license tag number on it--the microchip number can be ascertained by scanning the dog. Another commentator suggested the Department should make verification of implantation of a microchip mandatory prior to the initiation of the application process. The Department will not require that a dog be microchipped before an application for a lifetime license can be issued and the process initiated. Most commentators wanted more flexibility in the process. The process set forth in the final-form rulemaking allows the dog owner to obtain an application prior to or after a microchip is implanted in the dog. However, the final-form regulation does require proof of microchipping prior to the county treasurer or agent actually issuing the lifetime license and tag number. Another commentator suggested the addition of the word ''altered'' to the identifying license certificate to be issued, so that the applicant or county treasurer can check a box as to whether the dog has been spayed or neutered. The commentator wanted to ensure applicants and county treasurers identify the dog properly as an ''intact'' male or female or a ''spayed, neutered or altered'' male or female. The application for a dog license or lifetime dog license already requires this type of information. The information is necessary to determine the proper cost of the license and becomes part of the records of the county treasurer or agent.
C. Transfer of Lifetime Dog Licenses--Further Define to Add Clarity
1. IRRC commented that § 21.53 does not specify a time period within which an owner must notify the county that issued the lifetime license of a change in address or ownership of the dog.
2. IRRC commented that the regulation is unclear as to what information is necessary for the owner to provide to the county treasurer or agent as part of the transfer application.
3. IRRC commented that section 205(a) of the act (3 P. S. § 459-205(a)) specifies a $1 fee for transfer of a license. IRRC suggested the $1 fee should be cross-referenced or set forth in this section of the rulemaking.
4. IRRC commented that the regulation is silent with regard to the process to be utilized by a dog owner moving to this Commonwealth from another state with a dog that has already been tattooed or implanted with a microchip in the former state of residence.
PACT commented that the Department should add a provision to the regulation which would delineate the lifetime licensing procedure for a person moving in from another state who already has his dog microchipped. The concern is the Department would require a new microchip to be implanted in the dog.
The BCSPCA commented that adding more specific language to § 21.53 would help to clarify the current regulations. The BCSPCA suggested the Department should address how much time the owner of a dog has to contact the county treasurer or agent after a change in address or a change in ownership of the dog, what information needs to be provided by the dog owner in each case and the fee for the transfer.
Honorable Raymond Bunt, Jr., Majority Chairperson, Agriculture and Rural Affairs Committee
Representative Bunt commented that he agreed with the comment submitted by the BCSPCA regarding § 21.53. Representative Bunt stated, ''Sections 205(a) and (b) of the law do establish fees for license transfer. If no fee is proposed for recording a new residence for a lifetime license owner, then perhaps that could be stated in the regulation.''
In response to comments received concerning the process to be followed when a dog with a lifetime license is transferred to another owner or permanently relocated to another county, the Department added language to § 21.53 of the final-form rulemaking and broke that section down into separate subsections addressing ownership transfers and residence changes within a county and ownership transfers and residence changes to places outside the county in which the lifetime license was issued. The new language and separate subsections in § 21.53 of the final-form rulemaking clarify the process to be followed in each case.
The Department added language to the final-form rulemaking to address comments concerning the lack of a specific time limit, in the act or the proposed regulation, within which the dog owner, transferee, or both, must notify the county treasurer or agent of a transfer of ownership or change of address. The Department believes, to assure protection of the dog and the general public, it is reasonable to require a dog owner or transferee, or both, to notify the county treasurer or agent and complete the necessary process either immediately prior to or within 10 days after the actual transfer of ownership or change of address takes place. In addition, the final-form regulation clarifies the type of information the dog owner or transferee, or both, must submit.
With regard to transfer fees that must be paid, section 205 of the act clearly establishes those fees and the final-form regulation restates the $1 transfer fee. Section 205(b) of the act makes it clear that even where a dog is moved to a new county and a new license and tag must be issued, the fee is still $1. Therefore, the Department cannot change the fee or require payment of an additional fee through regulation.
The Department received comments regarding clarifying the lifetime license process to be followed by a person moving into this Commonwealth from another state. The commentators were concerned that if a person owned a dog that already had a microchip implanted, the person would have to have another microchip implanted in the dog. The Department believes the changes made to § 21.51 of the final-form rulemaking, which address the lifetime license process to be followed when a dog already has a microchip implanted, address this issue. With regard to the issue of a dog owner moving into this Commonwealth from another state and obtaining a Commonwealth lifetime license, that person would merely follow the same process as any Commonwealth resident wishing to purchase a Commonwealth lifetime license. There are no provisions in the act that provide for the transfer of an out-of-State license. A dog license issued in another state is not valid for a dog permanently transferred into this Commonwealth.
IRRC commented on the Department's proposed deletion of § 21.4. IRRC commented this provision contains the penalties for violations of this chapter. IRRC suggested for clarity, that even though the penalties are set forth in the act, the Department should consider replacing the content of the penalty section with a cross-reference to the section relating to penalties contained in section 201(c) of the act.
PLAN commented that it strongly opposes the proposed deletion of § 21.4. PLAN notes the Department originally intended to amend the language of the penalty provision set forth in § 21.4 so that the language of the regulation mirrored the language in section 903 of the act. PLAN believed that having the penalties included in the regulations will clarify the regulations for judges, kennel owners and all those who read them.
The BCSPCA commented that it opposes the proposed deletion of § 21.4. The BCSPCA stated, ''[W]e believe raising the level of offense to misdemeanor of the third degree for a third or subsequent violation under this act within 1 year of conviction for the first and second violations is both reasonable and necessary. Summary penalties are clearly not meaningful or effective if they do not deter someone from committing a third or subsequent offense less than a year after being convicted for a similar offense.''
In response to the comments submitted regarding the Department's proposed deletion of the one penalty provision contained in the current regulations, the Department has decided to amend the ''penalty'' provisions, in § 21.4, to include all penalties set forth in the act. The current regulations contain only one penalty provision. That penalty provision is a restatement of the penalty in section 903 of the act. However, the act itself contains numerous penalty provisions. Some of the provisions relate to a specific article of the act and other penalty provisions apply to the entire act. In addition, because of amendments to the act--specifically to section 903 of the act--the penalty provision set forth in the current regulations was not consistent with the penalty provision in section 903 of the act. Therefore, the Department felt the regulations, were potentially confusing. The Department, in the proposed regulations, was attempting to eliminate the potential problems and confusion arising from providing only one penalty in the regulations when the act provides for numerous penalties. The Department, wishing to avoid redundancy, decided to eliminate any reference to penalties in the regulations and simply allow the act to control. However, based upon the response of the regulated community's and the regulated community's desire to have the penalties actually set forth in the regulations, the Department has included all of the penalty provisions delineated in the act in the final-form rulemaking. In addition, to add further clarity, the Department has broken the penalty provisions down by article and subject matter.
E. Recordkeeping for Lifetime Dog Licenses--Need and Clarity
1. IRRC commented that some of the language contained in § 21.52 was redundant. IRRC stated that this section repeats the language contained in § 21.51(e) of the proposed rulemaking. IRRC suggested the Department should eliminate one of the repetitious provisions.
2. IRRC pointed out that while the recordkeeping provisions of the proposed regulations required the county treasurer or agent to retain records for 20 years, there is no provision regarding how long the Department is going to retain lifetime dog licenses.
In the final-form rulemaking, the Department has corrected the redundant language contained in §§ 21.51(e) and 21.52 of the proposed rulemaking.
With regard to IRRC's comment concerning the length of time the Department will retain lifetime license records, the Department will maintain the records for the same amount of time as the county treasurers' or agents' (that is, 20 years). Because regulations are not intended to regulate the actions of the regulated body, the Department does not believe it is necessary to promulgate a specific provision within the regulation setting forth the time period for retention of records by the Department.
IRRC commented that the addition of the term ''releasing agency'' to the definitions section of the proposed rulemaking is unnecessary because the term does not appear elsewhere in the proposed rulemaking. IRRC suggests the term should be deleted from the final-form rulemaking.
PLAN commented that the addition of the term ''releasing agency'' is not necessary because the term does not appear elsewhere in the proposed rulemaking.
In response to the comments regarding the definition of ''releasing agency,'' the Department has removed the definition from the final-form rulemaking.
G. Requiring Scanners
Honorable Peter J. Daley, Minority Chairperson, Agriculture and Rural Affairs Committee
1. Representative Daley commented that the proposed regulation does not require pet shelters that might receive stray animals to have a scanning device to detect microchips. Representative Daley was concerned, unless the Department requires shelters to have scanning devices or requires scanning of dogs prior to euthanasia, a dog owner could lose a pet at a shelter that fails to scan the dog prior to euthanasia. Representative Daley states, ''. . . there clearly is an implied promise of security for one's pet when a microchip license is purchased, and that promise will fail if there is not widespread distribution of the microchip wands.'' In addition, Representative Daley realized a regulatory requirement could impose a cost on shelters if the scanning devices were not provided free of charge. Therefore, Representative Daley suggested the final-form rulemaking should require shelters to have scanning devices so long as they are available at no cost to the shelter.
Representative Daley's comment received two responses; one from the veterinary industry and one from the microchip industry.
The first response came from the PVMA. The PVMA responded that it shares the ''. . . desire to encourage the scanning of all animals prior to admitting them into a shelter, before they are adopted and prior to euthanasia.'' However, the PVMA stated that while it would strongly support a statute (or statutory provision) requiring the scanning of an animal before it is euthanized, it does not believe the lifetime licensure regulation should be delayed in its implementation while awaiting the writing and approval process for a mandatory scanning regulation. In addition, the PVMA addressed the issue of the cost of scanning devices for shelters. The PVMA informed the Department that 5 years ago it entered into a contract with the AVID Microchip Company (AVID). Among other things, the contract allowed the PVMA to distribute the AVID microchip scanners free of charge to any legitimate animal control facility that made a formal request. The PVMA further states that AVID has assured the PVMA it intends to continue to honor the contract with the PVMA and will provide scanners free of charge to facilities that do not presently have a scanner. The PVMA suggest the Department contact the PFHS and ask the PFHS to poll its members. The PVMA would be willing to provide the necessary information to permit this facility to qualify for a complimentary reader.
The second response came from AVID. AVID stated it has been its policy to provide scanning devices free of charge to facilities that process stray and lost animals. AVID has a contract with the PVMA to provide scanning devices free of charge to animal shelters and humane organizations throughout this Commonwealth. AVID has two requirements that must be met in order for it to continue to provide scanning devices free of charge in this Commonwealth. First, because having a scanning device does not assure a shelter or stray animal facility will utilize the device and because the Commonwealth has no law requiring animals to be scanned prior to admission, adoption or euthanasia, the facility receiving the free scanning device must enter into a written agreement with AVID promising it will scan animals prior to admission and prior to adoption or euthanasia. The second requirement is that AVID must be able to continue to generate sales of microchips to Pennsylvania veterinarians and shelters. AVID would support legislation requiring the scanning of all animals prior to admission to shelters or other animal control facilities and prior to adoption or euthanasia.
The Department, after much discussion and consideration of the comment related to requiring the use of scanning devices in the final-form regulation, has decided the mandatory use of scanning devices absent an agreement with the industry to provide scanners free of charge to all facilities that accept, hold and euthanize or adopt dogs, has the potential of imposing undue costs and expenses on that industry. While the Department believes the intent of the comment is laudable, also believes the topic is one that requires additional discussions and assurances before it is implemented. As pointed out by the PVMA, many persons in the industry have eagerly anticipated the promulgation of this regulation and there is a need to move it forward as soon as possible. In addition, many facilities accepting, holding, euthanizing and adopting dogs already have scanners. Furthermore, the mandatory requirement of possessing a scanning device, absent a law requiring the scanning of every dog prior to euthanasia and appropriate recordkeeping requirements, will not ensure the intent of the comment is met. The Department and the industry is very willing to endorse and encourage every facility accepting, holding and euthanizing or adopting dogs to possess a scanner and to scan every dog received by that facility prior to it being euthanized or adopted.
Honorable Raymond Bunt, Jr., Majority Chairperson, Agriculture and Rural Affairs Committee
Representative Bunt commented that the ''Background'' section of the Preamble to the proposed rulemaking contained two references to the implantation of a microchip as a ''more humane'' method of identification. Representative Bunt opined these references are not accurate and infer that tattooing is inhumane. Representative Bunt strongly encouraged the Department to remove these references to the humane treatment of dogs in the final-form preamble.
PACT commented that the first sentence of § 21.51(c) states, ''[T]he owner shall arrange to have the dog tattooed or a microchip implanted at the owner's expense with the number assigned by the county treasurer in the manner prescribed by subsection (b).'' PACT interprets the amendments made by the proposed regulations to delete § 21.51(b).
The Department agrees with Representative Bunt's comment and has removed the language ''more humane'' from the preamble of the final-form rulemaking.
The amendments set forth in the proposed rulemaking do not have the effect of deleting § 21.51(b). In addition, the modification of the regulation in its final-form makes this point of contention mute.
Additional Comments Received After Department Revisions to the Regulations
Reissuance to First Round Commentators
Because of extensive revisions made to the regulations as a result of the comments received during the proposed stage of rulemaking the Department--after making revisions based on those comments and prior to submitting the revised regulation for final rulemaking--reissued the revised regulation to all persons who commented during the proposed stage of rulemaking for additional comments on the revised draft. The Department received additional comments from IRRC, the PFDC, PLAN and PACT. The comments received were section specific and therefore are set forth in that manner as follows.
A. Section 21.4 Penalties.
1. IRRC questioned whether it was necessary to ''. . . reiterate the penalty provisions of the Act in the regulations, rather than just cross-referencing the penalty provisions?''
For clarity and based on comments received during the proposed stage of rulemaking and discussions with commentators, the Department feels that consolidating and delineating the actual penalties in the regulations is necessary. Establishing the penalties in the regulations and consolidating the penalties under the various articles of the act assists the regulated community, the district justices and the Bureau and streamlines compliance and adjudicatory matters by not requiring those persons to cross-reference the act and by clarifying which penalties pertain to violations of the provisions of each article. The need for this is made even more evident by PLAN's comment regarding this regulation. PLAN states, ''[W]hat a super job the Department has done with the penalty section. That's one of the most comprehensive penalty sections on the books! Thank you for organizing all those references in such a concise manner.''
B. Section 21.51 Lifetime Dog License Issuance.
Issue 1: 10 Day Time Limit for Tattooing of a Dog
1. IRRC commented that it believed the 10-day time period requirement set forth in subsections (d)(7) and (9) and (g)(2) was not enough time to allow a dog owner to get a dog tattooed and return the verification form to the county treasurer or agent. It noted the proposed version of the regulations gave a dog owner 60 days, plus an additional 30 days to reapply if the 60-day time frame was not met.
2. The PFDC commented that the 10-day time period requirement set forth in the revised regulations is ''. . . much too short a time period, especially if the dog owner is doing it by mail.'' The PFDC suggested that a more reasonable time period would be 30 days and suggested the time period for having a dog either tattooed or microchipped should be the same.
3. PACT commented that the 10-day time period requirement set forth in the revised regulations ''. . . should be changed to read 30 to 60 days.'' It pointed out that the busy schedule of most people today only allow them to carry out these duties on the weekend or their days off.
The Department agrees with these comments and has changed the time period in the final-form regulation to 30 days. The Department originally reduced the time period from the 60 days, plus an addition 30 days to reapply, to make the recordkeeping and tracking of the license applications easier for the county treasurers and agents and to assure the process was completed in a timely manner, thereby better protecting the health and safety of the dog. It is imperative that the licensure process be completed in a timely manner because an unlicensed dog, which has escaped its owner or has been found running at large, has no identification for purposes of contacting the owner and may be euthanized by a shelter within 48 hours of arrival at the shelter. Therefore, after reviewing the comments the Department agrees a 30-day time period is more appropriate and reasonable.
Issue 2: Violation for Not Tattooing or Microchipping the Dog Within the Time Period Set Forth in the Regulations.
1. IRRC commented on the language in subsection (d)(9) regarding a violation of the act for not complying with the 10-day tattooing provision. IRRC questioned what provision of the act would be violated if a person did not meet the time frame set forth in the regulations regarding the tattooing of a dog. In addition, IRRC pointed out there was no similar provision contained in the microchip sections of the rulemaking.
The act, in section 201, requires ''. . . the owner of any dog, three months of age or older . . . shall apply to the county treasurer in his respective county or an agent . . . for a license for such dog.'' Thus all dogs 3 months of age or older must be licensed. Section 200(b) of the act regarding lifetime licenses requires the same licensure, except a lifetime license holder will not be required to renew a license on an annual basis. The regulations provide a timeline for completion of the licensure process (application to permanent identification and actual tag and license issuance). An applicant that violates this requirement does not have his dog properly licensed and therefore violates the licensure provisions of the act. The Department in response to comments regarding the reasonableness of the timeline has changed the time period to complete the process from 10 days to 30 days. In addition, the Department has set forth the same timeline in the microchip sections of the regulations for completion of the lifetime licensure process regarding the implantation of a microchip.
Issue 3: Clarification of the reference to implantation of a microchip as opposed to scanning of the microchip.
1. IRRC questioned whether the reference in the last sentence in subsection (f)(3) to ''the person implanting the microchip number'' should be changed to ''the person scanning the microchip number,'' since that subsection addresses dogs that were previously microchipped.
The Department agrees that the language of the sentence should be changed. In the final-form rulemaking, the Department has replaced all references to ''implanted'' or ''implanting'' in this subsection with the words ''scanned'' or ''scanning.''
Issue 4: Typo in subsection (g)(2).
IRRC pointed out an apparent typo in subsection (g)(2). It stated the word ''fees'' should be changed to ''fee.''
The Department corrected this typographical error in the final-form rulemaking.
Issue 5: Redundancy relating to subsections (f) and (g).
IRRC stated that subsections (f) and (g) appear to repeat the same information and inquired as to whether these two subsections could be combined into one subsection.
Subsection (f) sets forth the procedures for owners of previously microchipped dogs to follow when applying for a lifetime license. Subsection (g) sets forth the process and procedures the county treasurers or agents must follow when issuing a lifetime license. Subsection (g) sets forth the procedures the county treasurers and agents must follow when the means of permanent identification is a tattoo, microchip or previously microchipped dog. While some of the language may appear repetitive, the Department feels it is necessary to separate the procedures of the dog owner and the county treasurers and agents for clarity. In fact, this is a change to the proposed regulations and was implemented because of comments stating the proposed regulations were confusing because there was not a clear distinction between the duties and responsibilities and processes of the dog owner and the county treasurers and agents. Therefore, the Department believes the two subsections are necessary and should not be combined.
Issue 6: Limiting the Persons Who May Apply a Permanent Means of Identification.
1. The PFDC stated that the act contains no reference to who may apply the permanent means of identification. The PFDC objected to the Department limiting the application of a tattoo or microchip to veterinarians or a person approved by the Department. The concern of the PFDC was that this language could impose a severe restriction on breeders with regard to where a breeder could go to have a dog tattooed or microchipped.
PACT commented with regard to the language in the regulations requiring a tattoo or microchip to be applied by a licensed veterinarian or other person approved by the Department. PACT commented that to properly enforce this requirement the Department would have to provide PACT with both a list of people approved by the Department to tattoo dogs and those approved to implant microchips in dogs.
It is not the intent of the Department to limit or restrict the persons available to breeders to either tattoo or implant a microchip in a dog as a means of permanent identification. The act provides that the Department is responsible for assuring the health and safety of dogs. The provisions requiring the permanent identification to be applied by a veterinarian or other person approved by the Department were intended to protect the dog from injury and unnecessary stress and to provide veracity. The Department has made two changes to the wording of the final-form regulations in response. First, the Department, after consulting with veterinarians at the Department, determined that the application of a tattoo should be limited to a licensed veterinarian. The tattoo must be applied to the right inner thigh of the hind leg of the dog. To effectuate this the dog must be laid on its side, the thigh held in the air and the tattoo applied. Dogs often object to the procedure while awake and could be harmed in the process. Therefore, it was the opinion of the veterinarians that dogs should, in most situations where a tattoo is being applied, be anesthetized or at the very least be in a controlled atmosphere where anesthesia is an available option and the proper techniques and controls can and will be used during the tattooing process. Second, the Department changed the wording of the microchip sections to read ''a licensed veterinarian or a licensed kennel owner.'' The fact that the person applying the microchip must be licensed adds veracity and integrity to the process and addresses the PACT concern regarding knowledge of who is approved by the Department to apply a tattoo or microchip. Persons holding a license have an incentive to perform in a manner that will not jeopardize the license and the Department can provide a list of licensed kennels to PACT. In addition, the wording is less restrictive on breeders, because it clarifies who is approved to perform applications and most breeders are licensed kennels and therefore could apply microchips to their own dogs and others. Also, breeders have a veterinarian they rely on for the health care needs of their dogs; therefore, a breeder that prefers to have their dogs tattooed as the permanent means of identification can utilize the services of their veterinarian.
Issue 7: Addition of the Word ''Altered'' to the Identifying License Certificates, Forms and Anywhere the Regulations Require Information About the Breed, Date of Birth, Sex, Color and Markings of the Dog.
PLAN commented the word ''altered'' should be added to the identifying license certificates, forms and anywhere the regulations require information about the breed, date of birth, sex, color and markings of the dog. PLAN states this will ''. . . facilitate information concerning dogs, especially females, who are not returned to their owners and are offered for adoption. The Department is aware of many female dogs who have had needless surgery because their guardians did not know they had been spayed.''
The Department has added the phrase ''and whether the dog has been spayed or neutered'' to all of the provisions of § 21.51 that refer to information about the breed, date of birth, sex, color and markings of the dog. The Department will make the necessary changes to the appropriate forms.
Issue 8: Allowing Agents to Sell Lifetime Licenses.
PACT commented that the regulations mention ''appropriate agent'' in many different places. PACT did not agree with its ''sub agents'' selling lifetime dog licenses. PACT suggested the agents may hand out the application for a lifetime license, but the county treasurer must issue the number and keep all the lifetime records.
The act does not distinguish, with regard to the role of agents, between the sale of annual dog licenses and the sale of lifetime dog licenses. Section 201(b) of the act relating to the sale of lifetime licenses, states, ''[T]he owner of a dog three months of age or older which has been permanently identified may apply to the county treasurer of his respective county or an agent under Section 200(a), on a form prescribed by the department for a lifetime license for a dog (3 P. S. §§ 459-200(a) and 459-201(b)).'' The role of the agent would remain the same as that set forth in Article II of the act. Nothing in the regulation can or does alter or change that authority or role of the agent. These amended regulations do not alter the meaning of language already set forth in the lifetime licensure regulations currently in place. The lifetime licensure regulations currently in place in § 21.51 allow the county treasurer or an agent to accept lifetime dog license applications, assign tattoo numbers, complete the tattoo certificate and collect the appropriate fees. The county treasurer still keeps the records and makes the appropriate reports to the Department, just as under the current regulations.
Issue 9: Allowing Dog Owners to Obtain and Complete a Lifetime License Application by Mail.
PACT commented it is not in favor of allowing the dog owner to apply by mail. PACT questioned ''[W]ho is going to pay the postage on the mail?''
The act, in section 200(b), addresses compensation to county treasurers. Section 200(b) of the act states in part, ''[F]or services rendered in collecting and paying over dog license fees, agents . . . may collect and retain a sum of $1 for each dog license sold, which amount shall be full compensation for services rendered by them under this act. The compensation shall . . . cover, among other things, the cost of processing and issuing dog licenses, postage, mailing . . . .'' Therefore, any postage fee should be covered by the $1 compensation allowed by the act. However, it should be noted that the Department, at its discretion, has in the past helped the county treasurers ''promote'' license sales by supplying the county treasurers with postage paid return envelopes to mail the license and tag back to the dog owner. The Department will continue to assist the county treasurers in any manner allowed by the act and within its budgetary limits; however, the compensation and postage issue is already addressed by the act and cannot be changed by regulation.
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