Comment on Proposed Rule 61-30
The citizens of West Virginia (“WV”) deserve better government than has been displayed by the legislative regulation proposed by the Department of Agriculture’s Dangerous Wild Animal
(“DWA”) Board. Proposed Rule 61-30 contains multiple typos, 1 internal inconsistencies, 2 and provisions that violate the underlying law.
3 Exceptionally noteworthy are thirteen (13) spelling errors of animals in the proposed list of DWAs.
4 In addition, not only has the DWA Board refused to provide any financial information required 5 on the “Fiscal Note for Proposed Rules,” 6 but the Board has also falsely stated that the proposed rule will result in “no additional cost to state government.” 7 By making this false statement, the DWA Board has attempted to evade providing financial information and explanations required by law.
8 Since Ohio has already spent at least $4 million 9 over a couple years to administer its DWA list, which includes only a small fraction 10 of the animals set forth in the WV list, nobody could possibly believe WV will incur no expense as a result of proposing to list thousands of animals as DWAs. The proposed WV DWA list will obviously cost WV millions more than the $4 million already paid by Ohio taxpayers.
1 See Sections 61-30-2.1; 61-30-2.3; 61-30-2.6; 61-30-2.7, 61-30-2.8, 61-30-3 and 61-30-4.1 (typos/omitted words, etc. should be obvious from a casual reading)(Section 61-30-4.1: The Proposed Rule states that DWAs "shall be caged in accordance with USDA Animal Care Use Animal Welfare Act and Animal Welfare Regulations." The
Federal law and regulations cited in the proposed rule are approximately 157 pages. Neither the Federal law nor the Federal regulations use the term “Animal Care Use.”). See also an additional thirteen (13) misspellings in footnote 4.
2 See Sections 61-30-2.3 and 61-30-2.4 (cage means an enclosure of wires or bars—versus --caging requirements means confinement to prevent escape). Obviously, all cages that prevent escape are not made from wires or bars.
Cages such as aquariums do no consist of wires or bars, but are standard caging for numerous animals on the DWA list.
3
See Sections 61-30-1.1; 61-30-6.2.1 and the “Brief Summary of Proposed Rule.” In each of these cases, the proposed rule provides only for ADDITION of animals to the DWA list when the law clearly provides that the DWA
Board shall “review the list of prohibited dangerous wild animals to determine if animals should be added or subtracted from the list.” W. Va. Code § 19-34-5(c)(F)(5) (underscore added). Since the Department of Agriculture and the rule drafters made this error three (3) times, the bias against West Virginia pet owners should be obvious.
4 Section 61-30-3 (Pipidate, Hlidae, Aluada, viscivorous, Emberizadae, citronella, Lonchra, Rhyncocephalia,
Atractispididae, amethystine, Diprotodonita, Macroscelidae, and Erinaceomorphia).
5 W. Va. Code § 29A-3-5 (“At the time of filing the notice of its action, the agency shall also file with the Secretary of State a copy of the full text of the rule proposed, and a fiscal note as defined in subsection (b), section four [ §
29A-3-4 ].”).
6 Appendix B of Proposed Rule 61-30.
7 Appendix B of Proposed Rule 61-30 (see Fiscal Note Summary).
8 W. Va. Code § 29A-3-5 .
9 Four million dollars is just the amount that is documented as spent in Ohio. This includes approximately $3 million for a temporary housing facility for relinquished/confiscated animals and approximately $1 million in Ohio’s budget specifically identified as applicable to Ohio’s dangerous wild animal law. See http://www.dispatch.com/content/stories/local/2014/04/28/many-owners-still-working-to-comply-with-law.html
(“Ohio constructed a roughly $3 million building to temporarily keep such creatures.”).
10 Ohio listed 170 species (plus certain venomous snakes). West Virginia has literally listed tens of thousands of animals by listing entire families and orders of animals.
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Although the DWA Board had the opportunity to revise its DWA list weeks ago, pet owners will
NOT know which animals are included in the DWA list until July 30, 2014 at the earliest, when the DWA Board meets again. Moreover, specific reasons for listing animals as DWAs still have not been provided.
11 Pet owners are entitled to know the precise animals being listed and the reasons their pets are being listed as DWAs. It appears clear that the DWA list will still include reptiles, amphibians, birds, fish and snails as a fee structure for such animals was reportedly discussed recently by the subcommittee of the DWA Board. By the time that the DWA Board meets on July 30, 2014, and information from that meeting is reported to pet owners, there will be insufficient time for pet owners to provide meaningful input regarding the proposed rule in the remaining day and a half. For the following reasons, Proposed Rule 61-30 is invalid and must be withdrawn until such time as a proposed rule can be written that provides West
Virginia pet owners the opportunity to provide meaningful comments during the period legally required to allow public comment to the regulatory board:
1.
The DWA Board failed to provide material information required by West Virginia citizens, such as (1) financial information and explanations required on Appendix B, and
(2) the scientific basis for listing any of the pets proposed as DWAs.
2.
The primary provisions actually submitted in the proposed rule are a fraud upon West
Virginia pet owners. Every significant substantive provision is being replaced, such as the list of DWAs, caging requirements, and the fees.
3.
The DWA Board has exhibited bias against pet owners and the Subcommittee has members that are known to be biased against ownership of harmless pets.
4.
Against a deadline, the DWA Board submitted a proposed rule knowing it was neither complete nor appropriate.
12 Pet owners have been defrauded by the rule submitted.
5.
The DWA Board failed to remedy omissions and inadequate provisions timely.
6.
Due to the omission of material information and the submission of “placeholder” provisions, West Virginia citizens have been denied the right to provide meaningful comments to a regulatory board that is effectively taking their pets via regulation.
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11 A newspaper report stated that general explanations were provided at a meeting on July 23, 2014, but those explanations were not included in the news report. Moreover, the explanations apparently only included whether there was a danger to health, wildlife or the environment. Pet owners are entitled to know the precise reasons for listing any animals so they can respond. The DNR representative must know the precise reasons to list any animal, so providing such information is only a matter of disclosing information already known to the decision- makers.
Between the use of scientific names or entire families and orders and reports of animals being removed from the
DWA list, everybody is totally confused about which animals are on the list.
12 Noting that many agencies have been 2 or 3 years late promulgating regulations, the DWA Board discussed being able to pass the red face test at a board meeting.
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