TITLE 2. AGRICULTURE

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Proposed Regulation

Title of Regulation: 2VAC5-105. Regulations Pertaining to Pet Shops Selling Dogs or Cats (adding 2VAC5-105-10 through 2VAC5-105-60).

Statutory Authority: §§ 3.2-6501 and 3.2-6501.1 of the Code of Virginia.

Public Hearing Information:

December 9, 2022 - 10 a.m. - Department of Agriculture and Consumer Services, Patrick Henry Building, East Reading Room, 1111 East Broad Street, Richmond, Virginia

Public Comment Deadline: December 23, 2022.

Agency Contact: Carolynn Bissett, Program Manager, Office of Veterinary Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-2483, FAX (804) 371-2380, TDD (800) 828-1120, or email carolynn.bissett@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board. Section 3.2-6501.1 of the Code of Virginia, which was established by Chapter 1284 of the 2020 Acts of Assembly, requires the board to adopt a regulation for the keeping of dogs and cats by a pet shop.

Purpose: Chapter 1284 of the 2020 Acts of Assembly requires the board to adopt a regulation for the keeping of dogs and cats by a pet shop. The general welfare of the public is protected when regulations are promulgated in compliance with statutory requirements. The goal of the statutory and regulatory requirements is to standardize welfare requirements for dogs and cats sold by retail pet shops.

Substance: Chapter 1284 of the 2020 Acts of Assembly establishes specific provisions the proposed regulation must include. The regulation requires (i) a regulated person or facility to register with the Virginia Department of Agriculture and Consumer Services (VDACS); (ii) establishes standards of adequate care, exercise, feed, shelter, space, treatment, water, proper cleaning, and lighting; (iii) requires at least one unannounced inspection by the State Animal Welfare Inspector annually; and (iv) establishes remedies for each finding in a given inspection.

Issues: The regulation will affect pet shops, which will now be regulated by VDACS. Certain pet shops that are currently in operation may not be in compliance with the requirements or may incur increased costs in order to come into compliance with the requirements and may view this as a disadvantage; however, pet shops may see a sales advantage if their marketing includes information regarding their operation being under inspection by a government agency.

The regulation will also affect VDACS, which will be responsible for ensuring compliance with the requirements established in the new regulation. The regulation has the advantage of bringing the department into compliance with the statutory requirement to inspect pet shops. A VDACS inspector will inspect all pet shops for compliance with Virginia's Comprehensive Animal Care Law, and once the proposed regulation becomes effective, the inspector will inspect for compliance with the regulation's requirements as well. The department does not anticipate any disadvantages as a result of this regulation but does anticipate receiving more complaints about pet shops as a result of the implementation of this new inspection program.

Department of Planning and Budget's Economic Impact Analysis: 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 (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 1284 of the 2020 Acts of Assembly, the Board of Agriculture and Consumer Services (Board) proposes a new regulation governing pet shops selling dogs and cats.

Background. Chapter 1284 of the 2020 Acts of Assembly² requires the Board to adopt a regulation "governing the keeping of dogs and cats by any pet shop." VDACS relates that the references to the "keeping" of dogs and cats refers only to retail pet shops that sell dogs and cats, given the bill's definition of "pet shop" as a "retail establishment where companion animals are bought, sold, exchanged, or offered for sale or exchange to the general public." The legislation also identifies specific components that must be addressed by the regulation, such as a requirement that these pet shops register with the Department of Agriculture and Consumer Services (VDACS) in order to operate; the payment of a $250 annual registration fee by "any private, for-profit entity required to register"; the inclusion of standards for the keeping of animals; a requirement that a state animal welfare inspector annually conduct at least one unannounced drop-in inspection of each pet shop; and remedies for each finding in a given inspection.

Consequently, the Board proposes to establish a new regulation that includes a $250 annual registration fee for pet shops selling dogs and cats; standards of adequate care, exercise, feed, shelter, space, treatment, water, proper cleaning, and lighting; an annual unannounced inspection by a state animal welfare inspector; and remedies for each finding in a given inspection including the cancellation of the registration, the institution of a conditional probationary period, the renewal of registration for a limited period, or other actions.

Estimated Benefits and Costs. VDACS estimates that there are approximately 20 pet shops in Virginia that sell dogs and cats. This number does not include pet shops that keep dogs and cats to facilitate adoptions on behalf of shelters because they would not be subject to this regulation. For example, most national pet store chains work with a local shelter to keep/display some of the dogs or cats that the shelter has available for adoption, but the store does not sell the animals. Similarly, VDACS has an existing animal shelter inspection program that oversees shelters and other entities involved in facilitating adoptions or other animal welfare issues. VDACS reports that the responsibility for inspecting pet shops that keep dogs and cats for adoption rests with local animal control officers. Thus this regulation would exclusively apply to private for-profit pet shops selling dogs and cats.

VDACS anticipates collecting approximately $5,000 in annual registration fee revenue from an estimated 20 affected pet shops. VDACS states that the new requirements would be handled by existing staff of the animal shelter inspection program by reprioritizing work assignments. The fees collected would be used to cover program costs related to annual unannounced inspections, the administrative costs involved in assessing and collecting the fee, and the administrative costs of corrective actions.

The primary intent of the legislation and the regulation appears to be enhancing the welfare of dogs and cats kept at pet shops while waiting to be sold. Thus, the main benefit of the proposal would be any incremental improvements in the welfare of affected animals. It is worth noting, however, that for-profit pet shops already have incentives to make the dogs and cats offered for sale look their best to prospective owners. Therefore, most shops may already provide adequate care in terms of exercise, feed, shelter, space, treatment, water, proper cleaning, and lighting. Furthermore, the Comprehensive Animal Care Law (§ 3.2-6500 et seq. of the Code of Virginia) addresses the keeping of animals by pet shops and authorizes animal control officers appointed by local governments to enforce these requirements. Although VDACS notes that the regulation is likely to improve the welfare of dogs and cats sold by these pet shops, VDACS does not have any data indicating any problems with care of dogs and cats at these shops in part because these shops are not currently under their purview. Thus, it is not clear whether the incremental effect of this action on any improvements to the welfare of affected animals is commensurate with the $250 annual registration fee and other costs imposed on pet shops.

Businesses and Other Entities Affected. VDACS estimates that the proposed regulation would apply to approximately 20 pet shops selling dogs and cats.

The Code of Virginia requires the DPB to assess whether an adverse impact may result from the proposed regulation.³ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, the proposed action would impose a $250 annual registration fee on pet shops selling dogs and cats. Thus, an adverse impact is indicated.

Small Businesses⁴ Affected.⁵ As noted, the proposed action appears to adversely affect small businesses.

Types and Estimated Number of Small Businesses Affected. VDACS estimates that most of the 20 affected pet shops are small businesses, but does not have any specific data.

Costs and Other Effects. The proposed action would establish a $250 registration fee on affected pet shops, many of which appear to fit the criteria for a small business. An adverse economic impact⁶ on small pet shops selling dogs and cats is indicated.

Alternative Method that Minimizes Adverse Impact. The proposed $250 annual registration fee is mandated by the legislation. Thus, there is no alternative method that minimizes the adverse impact.

Localities⁷ Affected.⁸ The proposed action applies to all localities uniformly and does not introduce costs for local governments.

Projected Impact on Employment. As discussed above, existing staff of the VDACS animal shelter inspection program would administer this regulation by reprioritizing work assignments. Additionally, most pet shops are likely already providing adequate care for dogs and cats waiting to be sold. Thus, the proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed $250 annual registration fee would add to the costs of operating a pet shop that sells dogs and cats. Consequently, the asset value of these pet shops may be moderately reduced. The proposed action does not affect real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP1284

³Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁴Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁵If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) 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, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) 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 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁶Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis of the Department of Planning and Budget.

Summary:

Pursuant to Chapter 1284 of the 2020 Acts of Assembly, the proposed regulation establishes specific provisions governing the keeping of dogs and cats by a pet shop, including (i) a requirement that pet shops register with the Department of Agriculture and Consumer Services in order to operate; (ii) the payment of a $250 annual registration fee by any private, for-profit entity required to register; (iii) standards for the keeping of animals; (iv) a requirement that a state animal welfare inspector annually conduct at least one unannounced drop-in inspection of each pet shop; and (v) remedies for each finding in a given inspection.

Chapter 105

Regulations Pertaining to Pet Shops Selling Dogs or Cats

2VAC5-105-10. Definitions.

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

"Animal care inspector" means the animal welfare inspector employed pursuant to § 3.2-5901.1 of the Code of Virginia, or as designated by the State Veterinarian.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Pet shop" means any retail, commercial, private, for-profit establishment that sells dogs or cats to the public and shall not include breeders, dealers, public or private animal shelters, home-based rescues, or residential establishments. Each location will constitute a separate pet shop.

2VAC5-105-20. Registration.

A. Each existing pet shop shall register and pay a $250 registration fee with the department annually by July 1. A new pet shop that will sell dogs or cats shall register prior to offering dogs or cats for sale, and that registration shall be valid until July 1 of the following calendar year. A pet shop shall apply for a registration using a format developed by the State Veterinarian. A pet shop shall display its registration in a location visible to the public.

B. A pet shop that fails to register with or submit the registration fee to the department shall, upon written warning from the department, have a probationary period of 30 calendar days within which it must register with the department. If the pet shop fails to register with the department by the conclusion of the probationary period, the pet shop shall not sell dogs or cats in the Commonwealth of Virginia.

2VAC5-105-30. Sale limitations.

No pet shop shall offer dogs or cats for sale to any research facility, as defined in § 3.2-6500 of the Code of Virginia.

2VAC5-105-40. Standards of care.

A. Each pet shop shall be kept in a clean, dry, and sanitary condition. Each pet shop shall provide enclosures that (i) can safely house dogs and cats and (ii) allow for adequate separation of animals of different sexes, ages, and temperaments. Each pet shop shall maintain dogs and cats in a manner that protects the animals against theft, injury, escape, and exposure to harmful substances.

B. Each pet shop shall ensure that all enclosures provide adequate shelter that is properly ventilated and that can be maintained at a comfortable temperature for the dogs and cats confined therein. An enclosure shall not be cleaned when occupied by a dog or cat unless the dog or cat can be further confined in a portion of the enclosure that precludes exposure to any cleaning agent, including water. The enclosure shall be thoroughly dry before it is returned to use. An enclosure shall be cleaned with a disinfectant or germicidal agent.

C. Each pet shop shall reasonably endeavor to ensure that drinking water is available to each dog or cat 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 pet shop shall ensure that dogs and cats are adequately and appropriately fed according to their age, and feed shall be stored in a manner that prevents spoilage, infestation, and contamination. All feed delivery utensils and receptacles shall be properly cleaned between uses.

E. Each pet shop shall ensure that each dog or cat is provided access to a resting platform or bedding as appropriate to its species, age, and condition.

F. Each pet shop shall provide adequate care to all dogs and cats offered for sale, including adequate exercise, adequate feed, adequate shelter, adequate space, treatment, adequate water, proper lighting, and proper cleaning, as these terms are defined in § 3.2-6500 of the Code of Virginia.

2VAC5-105-50. Inspection.

A. Each pet shop is subject to at least one unannounced annual inspection of dogs and cats during normal department business hours conducted by the animal care inspector.

B. The animal care inspector shall be granted access to the entire pet shop facility and any requested records.

C. Each pet shop shall be inspected for compliance with this chapter and Chapter 65 (§ 3.2-6500 et seq.) of Title 3.2 of the Code of Virginia.

2VAC5-105-60. Compliance.

A. A pet shop shall immediately correct any noncompliance that the animal care inspector identifies during an inspection. If the pet shop is not able to correct a noncompliance during the inspection, then a probationary period shall commence. If the animal care inspector identifies a noncompliance, the animal care inspector will provide the pet shop written notification within a reasonable time after the inspection. The notification will include a copy of the inspection report and an explanation of the cited noncompliance, including the relevant section of the Code of Virginia or Virginia Administrative Code. The pet shop shall correct the noncompliance to the satisfaction of the animal care inspector.

B. Upon gross, repeated violations or any noncompliance not corrected during a probationary period, the department may revoke a pet shop's registration following reasonable notice to the registration holder and an opportunity for an informal fact finding proceeding pursuant to § 2.2-4019 of the Code of Virginia. If the department revokes a pet shop's registration, the pet shop shall not sell dogs or cats in the Commonwealth of Virginia and must post publicly visible signage provided by the department. The revocation of registration shall remain in effect until the pet shop corrects the noncompliance to the satisfaction of the animal care inspector.

C. The department may immediately temporarily suspend a pet shop's registration whenever the department has reason to believe that an animal health hazard exists or is imminent or when a pet shop willfully refuses to permit authorized inspection. If the department suspends a pet shop's registration, the pet shop shall not sell dogs or cats in the Commonwealth of Virginia and must post publicly visible signage provided by the department. The revocation of registration shall remain in effect until the pet shop corrects the noncompliance to the satisfaction of the animal care inspector.