2VAC5-110 Rules and Regulations Pertaining to a Pound or Enclosure to Be Maintained by Each County or City

REGULATIONS

Vol. 32 Iss. 4 - October 19, 2015

TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Chapter 110

Proposed Regulation

Titles of Regulations: 2VAC5-110. Rules and Regulations Pertaining to a Pound or Enclosure to Be Maintained by Each County or City (repealing 2VAC5-110-10 through 2VAC5-110-110).

2VAC5-111. Public and Private Animal Shelters (adding 2VAC5-111-10 through 2VAC5-111-40).

Statutory Authority: § 3.2-6501 of the Code of Virginia.

Public Hearing Information:

December 10, 2015 - 10:30 a.m. - Virginia State Capitol, Senate Room 3, 1000 Bank Street Richmond, VA 23219

Public Comment Deadline: December 18, 2015.

Agency Contact: Dr. Carolynn Bissett, Program Manager, Animal Care and Emergency Response, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone [phone], FAX [phone], TTY [phone], or email [e-mail].

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board and grants the board the authority to adopt regulations in accordance with the provisions of Title 3.2 of the Code of Virginia.

This action is proposed pursuant to § 3.2-6501 of the Code of Virginia, which authorizes the board to adopt regulations consistent with the intent and objectives of the Comprehensive Animal Care Laws (Chapter 65 (§ 3.2-6500 et seq.) of Title 3.2 of the Code of Virginia) pertaining to the care of animals.

Specifically, this proposed action is consistent with the intent and objectives of §§ 3.2-6546 (concerning public animal shelters) and 3.2-6548 (concerning private animal shelters) of the Code of Virginia.

Purpose: The Board of Agriculture and Consumer Services currently regulates public animal shelters under 2VAC5-110. This body of regulation, which has not been substantively amended since 1985, sets standards of facility construction and animal housing intended to ensure that companion animals held in the public interest are protected from injury or illness. These regulations apply to all animals housed in the facility, including those that have satisfied or are not subject to a stray or other holding period. Private animal shelters that confine companion animals subject to a holding period are currently unregulated.

The proposed regulation is intended to ensure that a consistent standard of confinement and care is applied to all companion animals held in the public trust while removing redundant provisions and provisions that are burdensome to public animal shelters holding animals for the purpose of facilitating adoption. It also seeks to ensure proper oversight of the provision of veterinary treatment and requires that all animals be provided a resting platform, bedding, or a perch as appropriate.

The confinement of animals in animal shelters is intended to protect citizens from potential public health and safety risks associated with free-roaming dogs. Additionally, the regulations requiring confinement of loose animals and a holding period are intended to protect the property rights of individuals, as companion animals are considered personal property under Virginia law.

Substance: The board intends to repeal 2VAC5-110, the current regulation pertaining to public animal pounds, and replace it with the proposed regulation pertaining to both public and private animal shelters. The following points will be addressed in this proposed regulatory action:

1. The current language concerning minimum animal housing standards and individual cage construction and size has been refined and applied to the housing of animals subject to a holding period in both public and private animal shelters.

2. The current language concerning facility sanitation, ventilation, food preparation and storage, and drinking water devices has been refined and applied to both public and private animal shelters in the proposed regulation.

3. The current language concerning water supply, waste disposal, and euthanasia has been eliminated. These topics are fully addressed in the Code of Virginia or elsewhere in the Virginia Administrative Code.

New provisions have been put in place concerning the provision of veterinary treatment, control of contagious and infectious disease, the care of compromised animal populations, and the provision of a resting platform or bedding.

Issues: This regulatory action offers advantages to the public and the Commonwealth. The currently regulated community—public animal shelters and the localities that operate them—have asked the Department of Agriculture and Consumer Services (VDACS) to provide them with greater flexibility in housing animals that are not subject to a holding period. This flexibility will allow localities to better serve the public. Clarification of expectations regarding veterinary treatment will help to better protect the public's interests in Virginia's companion animal populations.

2VAC5-110 has not been substantively amended since 1985. In the past 30 years, the scope of activities of many public animal shelters throughout the Commonwealth has significantly increased. Such facilities are routinely housing companion animals beyond the statutory holding periods established for stray animals in order to promote the adoption or transfer of these animals. The current regulations can preclude the implementation of housing and enrichment practices that are considered industry standard for the long-term housing of animals. Concurrently, private animal shelters are confining companion animals subject to holding periods on a routine basis without regulation. VDACS has determined that it is in the public interest to ensure that all companion animals in shelter facilities subject to a holding period be maintained in a manner that protects the animals from injury, illness, and theft for this short period while allowing public animal shelters greater freedom in their housing of animals that have satisfied holding period requirements.

VDACS has also determined that greater direction concerning the provision of veterinary treatment is needed. The Code of Virginia mandates that veterinary treatment be provided to all animals when needed. Public and private animal shelters need to allocate sufficient resources for this mandated treatment and to follow an appropriate protocol in making decisions as to when treatment is warranted.

Finally, VDACS has determined that the provision of resting platforms or bedding to each animal housed in Virginia's animal shelters will offer substantive improvement in animal care in those few facilities that do not already provide such.

VDACS does not foresee disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (Board) proposes to repeal its regulation that governs public animal shelters and replace it with a regulation that will govern both public and private animal shelters. The Board also proposes to two substantive changes for the replacement regulation which will 1) require animal shelters to provide each animal with an appropriate resting platform, bedding or perch and 2) require each shelter to have protocols for the medical treatment of animals, the control of infectious disease and the management and care of neonatal and medically compromised animals that have been approved by a veterinarian. The replacement regulation will also newly require private animal shelters to have special housing for strays that are in a holding period window.

Result of Analysis. There is insufficient information to ascertain whether benefits will outweigh costs for this regulatory proposal.

Estimated Economic Impact. Currently, the Virginia Department of Agriculture and Consumer Services (VDACS) is in charge of inspecting both public and private animal shelters. Public animal shelters are currently inspected for compliance with this Board regulation which was promulgated and became effective in 1985. Private animal shelters are currently inspected for compliance with relevant legislative requirements in Code of Virginia § 3.2-6548 and § 3.2-6557. Legislative requirements for private animal shelters are substantively the same as those contained in current regulation except that private animal shelters do not currently have to have special housing for strays that are in a holding period window (five days for stray animals with no identifying tags or chips and 10 days for animals with identifying tags or chips).

The Board now proposes to replace this current regulation with a new regulation that will apply to both public and private animal shelters. The regulations will be substantively the same except for new requirements that all animals be provided with a raised platform, bedding or perch and that all shelters have veterinarian approved protocols in place for 1) the medical treatment of animals, 2) the control of infectious disease and 3) the management and the care of neonatal and medically compromised animals. Additionally, private animal shelters will newly be required to have separate housing for strays during the holding period if they accept the care of stray animals after the replacement regulation is promulgated.

Affected public and private animal shelters may incur costs for providing bedding for all animals in their care, if they do not already do so. If bedding must newly be acquired, animal shelters may incur no direct costs if bedding is donated. If they must purchase bedding, costs will likely range from a few dollars to $50 per bed. Affected public and private animal shelters will also incur time costs for time spent writing required protocols and may incur fees for a veterinarian's time to approve those protocols. Board staff reports that some shelters have a full time veterinarian on staff and so would not incur extra costs for approving protocols. Animal shelters who do not have a veterinarian on staff, will likely have to pay an hourly fee that may range up to $120 per hour for the time it takes to read and approve protocols. Board staff estimates that the approval process will take one to two hours.

Private animal shelters that currently take in stray animals will either have to incur costs for purchasing holding period compliant housing or they will have to stop taking in strays. Board staff estimates that such housing will cost between $250 and $1,000 per cage but also reports that shelters may choose to buy a block of six regulation compliant cages of various sizes for approximately $2,500. The costs added for complying with new requirements may also cause shelters to be able to take in fewer animals. All costs associated with this proposed regulation must be weighed against any improvements that may accrue on account these new requirements. There is insufficient information to ascertain whether benefits will outweigh costs.

Businesses and Entities Affected. Board staff reports that approximately 94 public animal shelters maintained by localities, 15 public animal shelters that are maintained by private non-profit organizations and 43 private animal shelters will be affected by this proposed regulatory package. All of the affected private animal shelters are non-profit organizations so no businesses will be affected by this proposal.

Localities Particularly Affected. Localities with public animal shelters will likely be disproportionately affected by this proposed regulatory change.

Projected Impact on Employment. This regulatory action will likely have little impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. Because this regulation will newly require private animal shelters to have special housing for strays that are in a holding period window, some private animal shelters may stop taking in strays.

Small Businesses: Costs and Other Effects. No small businesses will be affected by this proposed regulatory package.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small businesses will be affected by this proposed regulatory package.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate.

General: The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order Number 17 (2014). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed regulation would apply,

• the identity of any localities and types of businesses or other entities particularly affected,

• the projected number of persons and employment positions to be affected,

• the projected costs to affected businesses or entities to implement or comply with the regulation, and

• the impact on the use and value of private property.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPBs best estimate for the purposes of public review and comment on the proposed regulation.

Agency's Response to Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget concerning the proposed regulation, 2VAC5-111, Rules and Regulations Pertaining to Public and Private Animal Shelters, but offers additional information regarding private animal shelters.

Private animal shelters are not mandated to house stray or unowned animals that are subject to a holding period. Section 3.2-6546 of the Code of Virginia requires localities to maintain a public animal shelter to house stray or unowned animals that are subject to a holding period. Thus, if a private animal shelter chooses to refer all animals subject to a holding period to the appropriate public animal shelter it will not incur any costs related to obtaining compliant housing. Alternatively, if a private animal shelter chooses to house stray or unowned animals that are subject to a holding period and the shelter does not already possess compliant housing, it could incur costs between $250 and $1,000 per cage depending on the cage size. The shelter may also choose to purchase a block of six compliant cages of various sizes for approximately $2,500.

Summary:

The Board of Agriculture and Consumer Services proposes to repeal its regulation that governs public animal shelters and replace it with a regulation that will govern both public and private animal shelters. The board also proposes substantive changes for the replacement regulation that will (i) require animal shelters to provide each animal with an appropriate resting platform, bedding, or perch; (ii) require each shelter to have protocols that have been approved by a veterinarian for the medical treatment of animals, the control of infectious disease, and the management and care of neonatal and medically compromised animals; and (iii) require private animal shelters to have special housing for strays that are subject to a holding period.

CHAPTER 111
PUBLIC AND PRIVATE ANIMAL SHELTERS

2VAC5-111-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Animal" means any nonaquatic companion animal that is in the custody of a public or private animal shelter and that is confined in or on the premises of the animal shelter.

"Enclosure" means a structure used to house or restrict animals from running at large such as a room, pen, cage, run, compartment, hutch, terrarium, or otherwise confined habitat.

"Facility" means a public animal shelter or private animal shelter as defined in § 3.2-6500 of the Code of Virginia.

2VAC5-111-20. General provisions.

A. Each facility shall be kept in a clean, dry, and sanitary condition and shall provide enclosures that can safely house and allow for adequate separation of animals of different species, sexes, ages, and temperaments. Animals shall be maintained in a manner that protects them against theft, injury, escape, and exposure to harmful substances.

B. Each facility shall ensure that all enclosures provide adequate shelter that is properly ventilated and that can be maintained at a comfortable temperature for the animals confined therein. An enclosure shall not be cleaned when occupied by an animal unless the animal can be further confined in a portion of the enclosure that precludes exposure to any cleaning agent including water and shall be thoroughly dry before the enclosure is returned to use. A disinfectant or germicidal agent shall be used when cleaning an enclosure.

C. Each facility shall reasonably endeavor to ensure that drinking water is available to each animal at all times unless otherwise ordered by a licensed veterinarian. Drinking water receptacles or bowls shall be secured to the enclosure in a fixed position or otherwise be of a design that cannot be tipped over by an animal and shall be maintained in sanitary condition.

D. Each facility shall ensure that animals are adequately and appropriately fed according to their species and age and that feed is stored in a manner that prevents spoilage, infestation, and contamination. All feed delivery utensils and receptacles shall be properly cleaned between uses.

E. Each facility shall ensure that each animal is provided access to a resting platform, bedding, or perch as appropriate to its species, age, and condition. All enclosures shall have solid floors.

2VAC5-111-30. Provision of veterinary treatment.

A. Each facility shall engage a licensed veterinarian to develop or ratify a protocol for determining if an ill, injured, or otherwise compromised animal requires treatment by a licensed veterinarian. Each facility shall adhere to this protocol and provide veterinary treatment when needed.

B. Each facility shall engage a licensed veterinarian to develop or ratify a protocol for the control of infectious and contagious disease and shall adhere to such protocol. Each facility shall provide a marked isolation room for the confinement of animals suffering from a contagious or infectious disease.

C. Each facility shall engage a licensed veterinarian to develop or ratify a protocol for the management of neonatal and medically compromised animals and shall adhere to such protocol. Enclosures shall be maintained that can properly and safely house such animals.

2VAC5-111-40. Housing of animals subject to a holding period.

A. An enclosure or portion thereof used to house an animal subject to a holding period shall be entirely constructed of materials that are durable, nonporous, impervious to moisture, and able to be thoroughly cleaned and disinfected.

B. An enclosure or portion thereof used to house an animal subject to a holding period that is part of the structural integrity of the building shall have a surface material that is durable, nonporous, impervious to moisture, and able to be thoroughly cleaned and disinfected.

C. All structures contained within an enclosure or portion thereof shall be constructed of materials that are durable, nonporous, impervious to moisture, and able to be thoroughly cleaned and disinfected unless discarded or laundered daily.

D. An enclosure and all structures therein used to house an animal subject to a holding period shall be thoroughly cleaned and disinfected before use by a different animal.

NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

FORMS (2VAC5-111)

Animal Facility Inspection Report, VDACS AC-10 (rev. 7/2015)

Animal Facility Inspection Form - Shelter, VDACS AC-10-A (rev. 7/2015)

Animal Facility Inspection Form – Animal Care, VDACS AC-10-B (rev. 7/2015)

Animal Facility Inspection Form – Operations, VDACS AC-10-C (rev. 7/2015)

VA.R. Doc. No. R14-4009; Filed September 25, 2015, 9:12 a.m.