Title of Regulation: 2VAC5-115. Regulations for Determining Whether a Facility Meets the Purpose of Finding Permanent Adoptive Homes for Animals (adding 2VAC5-115-10, 2VAC5-115-20, 2VAC5-115-30).

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

Public Hearing Information:

December 6, 2018 - 10 a.m. - Patrick Henry Building, West Reading Room, 1111 East Broad Street Richmond, VA

Public Comment Deadline: December 14, 2018.

Agency Contact: Dr. Kathryn MacDonald, Program Manager, Animal Care and Emergency Response, Department of Agriculture and Consumer Services, 102 Governor Street, Richmond, VA 23219, telephone (804) 692-4001, FAX (804) 371-2380, or email kathryn.macdonald@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. Chapter 319 of the 2016 Acts of Assembly requires the board to "adopt regulations that determine whether a private animal shelter meets the purpose of finding permanent adoptive homes for animals."

Purpose: Legislation approved during the 2015 Session of the General Assembly amended the Virginia Comprehensive Animal Care law's definition for "private animal shelter" to require that a facility that is a private animal shelter be "operated for the purpose of finding permanent adoptive homes for animals." In the year that followed this amendment, significant controversy arose among stakeholders as to what determines a facility's purpose. In response to stakeholders, Chapter 319 of the 2016 Acts of Assembly requires the board to promulgate regulations to determine whether a private animal shelter meets the purpose of finding permanent adoptive homes for animals. This regulatory action does not impact public health or safety; however, general public welfare is protected when regulations are promulgated in compliance with statutory requirements.

Substance: The proposed regulation establishes criteria to determine if a facility is operating for the purpose of finding permanent adoptive homes for animals by requiring that a facility adopt animals and engage in activities that promote adoption, such as being accessible to the public, advertising adoption, transferring animals to other releasing agencies for adoption, temporarily placing animals in foster homes while awaiting adoption, or offering services to keep animals in their permanent homes.

Issues: Chapter 319 of the 2016 Acts of Assembly requires the board to promulgate this proposed regulation to determine whether a facility is operating for the purpose of finding permanent adoptive homes for animals. Identifying potential criteria has proven to be a contentious issue for the interested stakeholders. The regulation will affect private animal shelters, which are regulated by the Virginia Department of Agriculture and Consumer Services (VDACS). Certain private animal shelters that are currently in operation may not be in compliance with the required criteria or may incur increased costs in order to come into compliance with the criteria.

The regulation will also affect VDACS, which will be tasked with ensuring compliance with the criteria determined in the new regulation. VDACS's animal shelter inspector currently inspects all private animal shelters for compliance with Virginia's Comprehensive Animal Care law; once the proposed regulation becomes effective, the inspector will inspect for the required criteria as well.

There is significant disagreement among stakeholders as to the intended purpose behind the 2015 and 2016 legislation. Some stakeholders believe that private animal shelters should operate for adoption only and feel strongly that the criteria should include a metric or required percentage for adoptions or allowable euthanasia. Other stakeholders believe that shelters should be allowed to determine which of the four methods of disposal prescribed in the Comprehensive Animal Care law is appropriate for each individual animal.

Chapter 319 of the 2016 Acts of Assembly consists of one sentence: "That the Board of Agriculture and Consumer Services shall adopt regulations that determine whether a private animal shelter meets the purpose of finding permanent adoptive homes for animals." The General Assembly provided no further guidance to the board to determine the criteria that would serve to determine whether a private animal shelter meets the purpose of finding permanent adoptive homes for animals. Stakeholder opinions on both the legislative intent and the proposed regulation are widely divergent and contentious. Some stakeholders believe the intent of the language is to subject private animal shelters to strict rules regarding euthanasia rates in order to force certain facilities currently operating with high euthanasia rates to stop operations. Alternatively, some stakeholders believe the intent of the language is unclear, and regulations should not impose any numerical metrics on private animal shelters. VDACS expects that private animal shelters may need to adjust their operations in order to come into compliance with the proposed criteria.

Currently, the Code of Virginia defines a "private animal shelter" as operating for the purpose of finding permanent adoptive homes for animals. This definition does not give VDACS specific guidance on how to interpret whether a private animal shelter is meeting that definition appropriately. The proposed regulation will give VDACS specific criteria to use to determine if a facility meets the definition of being a private animal shelter.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 319 of the 2016 Acts of Assembly,¹ the Board of Agriculture and Consumer Services (the Board) proposes criteria to determine whether a private animal shelter meets the purpose of finding permanent adoptive homes for animals.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Pursuant to Chapter 319 of the 2016 Acts of Assembly, the Board proposes the following:

"A facility that is operated for the purpose of finding permanent adoptive homes for animals shall annually (i) find permanent adoptive homes for animals and (ii) conduct at least three of the following activities:

1. Be accessible to the public to view animals available for adoption;

2. Advertise to the general public animals that are available for adoption;

3. Transfer animals available for adoption to a releasing agency;

4. Utilize a foster care provider for animals temporarily awaiting placement in permanent adoptive homes; or

5. Offer services to the public in an effort to keep animals in their permanent homes."

Of the five activities, the first one is already required by Virginia Code § 3.2-6548(A)² which refers to § 3.2-6546 (B).³ As a result, a facility may, in effect, be deemed to meet the purpose by conducting two of the four remaining activities. There are currently 44 private animal shelters operating in Virginia. The Board staff believes only a handful of them may not be fully meeting the proposed regulation. Those that do not meet the criteria may comply with the regulation by conducting any two of the activities listed in the regulation. Most of the proposed activities do not involve significant costs. For example, establishing a Facebook page stating that animals are available for adoption would satisfy the second activity.⁴ Thus, the proposed regulation is not expected to create any significant cost for the private animal shelters currently out of compliance. The proposed regulation is beneficial in the sense that it establishes how a facility may be deemed to meet the purpose of finding permanent adoptive homes for animals as required by the statue.

Businesses and Entities Affected. There are currently 44 private animal shelters. In 2016, 42,897 animals were adopted, transferred, or euthanized at these facilities.

Localities Particularly Affected. The proposed regulation applies statewide.

Projected Impact on Employment. No significant impact on employment is expected.

Effects on the Use and Value of Private Property. No significant impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

Costs and Other Effects. All of the private animal shelters are nonprofit organizations. Thus, there is no costs and other effects on small businesses.

Alternative Method that Minimizes Adverse Impact. There is no adverse impact on small businesses.

Adverse Impacts:

Businesses. The proposed regulation will not have an adverse impact on non-small businesses.

Localities. The proposed regulation is not expected to adversely affect localities.

Other Entities. The proposed regulation will not adversely affect other entities.

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¹http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+CHAP0319

²https://law.lis.virginia.gov/vacode/title3.2/chapter65/section3.2-6548/

³https://law.lis.virginia.gov/vacode/title3.2/chapter65/section3.2-6546/

⁴Source: Department of Agriculture and Consumer Services

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

Summary:

Pursuant to Chapter 319 of the 2016 Acts of Assembly, which directed the Board of Agriculture and Consumer Services to promulgate a regulation to determine whether a private animal shelter meets the purpose of finding permanent adoptive homes for animals, the proposed regulation establishes provisions for making such a determination.

CHAPTER 115
REGULATIONS FOR DETERMINING WHETHER A FACILITY MEETS THE PURPOSE OF FINDING PERMANENT ADOPTIVE HOMES FOR ANIMALS

2VAC5-115-10. Definitions.

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

"Facility" means a building or portion thereof as designated by the State Veterinarian, other than a private residential dwelling and its surrounding grounds, that is used to contain primary enclosures in which animals are housed or kept.

"Foster care provider" means a person who provides care or rehabilitation for companion animals through an affiliation with a public or private animal shelter, home-based rescue, releasing agency, or other animal welfare organization.

"Private animal shelter" means a facility operated for the purpose of finding permanent adoptive homes for animals that is used to house or contain animals and that is owned or operated by an incorporated, nonprofit, and nongovernmental entity, including a humane society, animal welfare organization, society for the prevention of cruelty to animals, or any other similar organization.

"Releasing agency" means (i) a public animal shelter or (ii) a private animal shelter, humane society, animal welfare organization, society for the prevention of cruelty to animals, or other similar entity or home-based rescue that releases companion animals for adoption.

2VAC5-115-20. Meeting the purpose of finding permanent adoptive homes for animals.

A facility that is operated for the purpose of finding permanent adoptive homes for animals shall annually (i) find permanent adoptive homes for animals and (ii) conduct at least three of the following activities:

1. Be accessible to the public to view animals available for adoption;

2. Advertise to the general public animals that are available for adoption;

3. Transfer animals available for adoption to a releasing agency;

4. Utilize a foster care provider for animals temporarily awaiting placement in permanent adoptive homes; or

5. Offer services to the public in an effort to keep animals in their permanent homes.

2VAC5-115-30. Failure to meet requirements.

Failure to meet the requirements in this chapter will result in the State Veterinarian or the State Veterinarian's representative determining that the facility does not operate for the purpose of finding permanent adoptive homes for animals and is not a private animal shelter.