PART 1. DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 169. ZOONOSIS CONTROL
SUBCHAPTER D. STANDARDS FOR ALLOWABLE METHODS OF EUTHANASIA FOR ANIMALS IN THE CUSTODY OF AN ANIMAL SHELTER
The Executive Commissioner of the Health and Human Services Commission (commission) on behalf of the Department of State Health Services (department) adopts amendments to §169.81 and §169.82, new §169.83 and §169.84, and the repeal of §169.83, concerning the standards for allowable methods of euthanasia for animals in the custody of an animal shelter. New §169.83 and §169.84 are adopted with changes to the proposed text as published in the January 9, 2009, issue of the Texas Register (34 TexReg 171). Amendments to §169.81 and §169.82, and the repeal of §169.83 are adopted without changes and, therefore, the sections will not be republished.
BACKGROUND AND PURPOSE
The amendments, repeal, and new sections are necessary to comply with Health and Safety Code, Chapter 821, Subchapter C, "Euthanasia of Animals," which provides the Executive Commissioner of the Health and Human Services Commission with the authority to administer the chapter and adopt rules necessary to effectively administer the program.
Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedures Act). Sections 169.81 - 169.83 have been reviewed and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are mandated.
SECTION-BY-SECTION SUMMARY
The amendment to §169.81 provides clarification and modifies the language to make it more concise. The amendment to §169.82 provides clarification of the term "animal shelter." The repeal and new §169.83 adds new language to provide instruction to animal shelter personnel on attempts to identify animal ownership and notifying owners prior to euthanasia. There is no fiscal impact as a result of this new language. The new §169.84 is the renumbered §169.83 that was moved for better flow of the rules and reorganized for clarity; and the new §169.84 updates euthanasia standards to be in compliance with the American Veterinary Medical Association (AVMA) revised AVMA Guidelines on Euthanasia (June 2007).
The revisions to the sections update and clarify language to enable those subject to the sections to more readily comply. The rules promote humane euthanasia for these animals and promote public health and safety.
COMMENTS
The department, on behalf of the commission, has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period, which the commission has reviewed and accepts. The commenters were individuals, associations, and/or groups, including the following: City of La Porte, Feather and Fur Animal Hospital, City of Garland, Texas Humane Legislative Network, Texas Municipal League, and Harris County. The commenters were not against the rules in their entirety; however, the commenters recommended changes as discussed in the summary of comments.
Comment: Concerning §169.83, a commenter stated there should be language as to where to look for tattoos, such as the abdomen, inner thighs, and the inside of the ear flap.
Response: The commission agrees and has added the example sites (abdomen, inner thighs, and inside ear flaps) provided by the commenter.
Comment: Concerning §169.83, a commenter stated that even though scanning for microchips is a "should," not a "shall," suggesting the use of a scanner may cause a hardship on small agencies without a scanner. Additionally, it may be difficult to examine the inner thigh of an aggressive or fractious dog or cat in order to search for a tattoo.
Response: The commission disagrees because both the scanning for microchips and searching for tattoos are a "should" function, not a "shall;" in legal terms, this means they are recommended, not required. No change was made to the rule as a result of this comment.
Comment: Concerning §169.83, a commenter recommended adding the following language, "A shelter that does not own a microchip scanning machine is not required to purchase one in order to comply with this rule." The commenter stated that the added language would reduce possible confusion by clarifying that position.
Response: The commission disagrees. The scanning is a "should" function, not a "shall;" in legal terms, this means it is recommended, not required. No change was made to the rule as a result of this comment.
Comment: Concerning §169.83, a commenter stated that the language should require the scanning of the animal for 125, 128 and 134 kHz chips.
Response: The commission disagrees because many shelters do not have microchip scanners and it could pose a hardship on them if they are required to use them. Additionally, at this time, it is the understanding of the commission that there are no national standards for type or frequency of microchips. No change was made to the rule as a result of this comment.
Comment: Concerning §169.83, a commenter recommended making scanning for microchips and searching for identification tattoos mandatory ("shall") rather than a suggestion ("should"); identifying the responsible individual by title; and requiring that scanning and searching shall be performed just prior to euthanasia. The commenter suggested that elsewhere within the rules, the department should use the word "shall" to establish the named individual/position who must accomplish this stated task/function. Establishing a finite period within which the animal shelter must scan for microchips and search for identification tattoos just prior to the final act of euthanasia increases the probability of finding the marker if it is present; this is due to the quieter, calmer conditions in the euthanasia room as required elsewhere in the proposed rules. The commenter suggested the following language: "The Animal Shelter Director shall ensure that animal shelter staff scan every animal scheduled for euthanasia for microchip identification and search the animal for identification tattoos. This scanning and searching shall occur not more than one-half hour prior to beginning the euthanasia injection/exposure to commercially compressed carbon dioxide, even if the animal had previously been scanned and searched. If animal shelter staff locate identification on an animal or if the animal is wearing a tag(s), the Animal Shelter Director shall ensure that animal shelter staff make reasonable efforts to locate and notify the animal's owner prior to euthanasia of that identified animal."
Response: Although the commission agrees that scanning for microchips and searching for tattoos prior to euthanizing an animal are highly recommended practices, the commission disagrees to making them mandatory. These functions may be difficult to achieve on particularly fractious, aggressive animals and the safety of shelter staff needs to be considered. Additionally, many shelters do not have scanners and it could pose a hardship on them if they are required to use them. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(a), a commenter stated this should read "concentrated" sodium pentobarbital to euthanize an animal.
Response: The commission disagrees because "sodium pentobarbital" is the term used in the Health and Safety Code, Chapter 821. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(b)(1), a commenter stated this should include language that "an uncertified individual cannot perform euthanasia except in the presence and at the direction of a certified individual."
Response: The commission disagrees. There is no certification for individuals euthanizing an animal(s) in the custody of an animal shelter; the Health and Safety Code, Chapter 821, just requires that a person euthanizing an animal(s) in the custody of a shelter successfully complete a department-approved euthanasia training course. Additionally, an individual conducting euthanasia under these terms has to successfully complete the mandated training within the time period allowed by statute; the individual cannot conduct euthanasia simply by being in the presence of a trained individual. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(b)(2), a commenter stated that listing the order of preference of routes of injection should be stricken because the route used is determined by a number of factors.
Response: Although the commission agrees that the route of injection is determined by a number of factors, it disagrees with deleting the listing because the order is based upon the AVMA Guidelines on Euthanasia (June 2007). No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(b)(3), a commenter stated that a new undamaged sterile needle should be used for injections.
Response: The commission agrees because every attempt needs to be made to make the injection process as painless as possible. Therefore, the descriptive term "new" has been added.
Comment: Concerning §169.84(b)(3), a commenter stated that all needles should be disposed of in accordance with Occupational Safety and Health Administration (OSHA) standards.
Response: Although the commission agrees that all needles should be disposed of in accordance with OSHA regulations, listing another agency's requirements does not fall under the purview of this rule. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(b)(4), a commenter stated that the requirements that injection be conducted out of the view of another animal and that the carcass of any animal(s) be removed from the euthanasia area prior to a live animal entering that area will significantly increase the work of some agencies and will not add significantly to the welfare of the animals. The commenter felt that it has been an acceptable practice of agencies to euthanize an animal in a room with carcasses of previously euthanized animals on the floor; the commenter did not feel that the animal shelter should need to take the extra step of removing a carcass(es) before bringing in a live animal.
Response: The commission disagrees. Every attempt should be made to reduce the anxiety of the animal(s) being euthanized and reduce stress in the euthanasia environment. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(b)(4), a commenter stated that, although ideally euthanasia can be done in a euthanasia room, the commenter's shelter is an older one that is not equipped with a separate room for euthanasia and there is only room to conduct euthanasia in the kennel room. The commenter did not feel that hanging a curtain to block the view of the animals would work because the curtain could absorb and help in the spread of disease because it could not be sanitized, therefore putting the shelter in violation of 25 Texas Administrative Code, Chapter 169, Subchapter A, §169.26, Facilities for the Quarantining or Impounding of Animals. Additionally, if the curtain were to be placed in the dog kennel area, it would be difficult to have an animal being euthanized by intraperitoneal injection in a quiet area as referenced in §169.84. Also, if the curtain is located in the dog kennel area, there would be a danger to shelter staff if they euthanize cats in this area because of the dogs' barking. The commenter suggested the following language: "Injection shall be conducted in an area out of public view, and should be out of the view of another animal if the shelter is equipped to allow for such; additionally, any shelter built after the adoption date of these rules shall have a area to conduct euthanasia out of the view of other animal(s)."
Response: The commission disagrees in that screens and curtains made of materials that may be sanitized are available. The commenter describes conditions that are less than desirable in the commenter's facility as currently constructed and operated. However, the proposed rule change neither solves nor exacerbates these problems. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(b)(4), a commenter stated that the requirements that injection be conducted out of the view of another animal and that the carcass of any animal(s) be removed from the euthanasia area prior to a live animal entering that area are not necessary because the commenter does not consider dogs and cats to be "sensitive species." The commenter felt that this would place extensive logistical burdens on government-operated facilities, so the commenter requested an exemption for government-operated facilities if this revision is incorporated. The commenter felt that this requirement was "codifying" the AVMA Guidelines on Euthanasia (June 2007); the commenter expressed that these are recommendations, not laws, and they do not apply as well for government-operated animal shelters as they do for private or non-profit veterinary facilities.
Response: The commission disagrees. Every attempt should be made to reduce the anxiety of the animal(s) being euthanized and reduce stress in the euthanasia environment. The AVMA Guidelines on Euthanasia (June 2007) also emphasizes minimizing animal stress. The AVMA Guidelines on Euthanasia (June 2007) states that it is desirable that, for sensitive species, other animals not be present when individual animal euthanasia is performed. Due to "sensitive species" not being defined in the AVMA Guidelines on Euthanasia (June 2007), the department contacted AVMA for their interpretation. The AVMA does consider both dogs and cats to be "sensitive species." These are species that are sensitive to signaling factors (for example, pheromones) released during situations in which fear and anxiety are invoked. This type of "alarm scent" emitted by an animal when frightened or wounded can elicit fear responses in other animals. The AVMA stated that dogs and cats respond to pheromones and, therefore, are considered to be "sensitive species." Additionally, the AVMA Guidelines on Euthanasia (June 2007) are cited for euthanasia techniques in the Health and Safety Code, Chapter 821, for these rules; however, the statute is more restrictive than these guidelines for euthanasia of dogs and cats. No changes were made to the rule as a result of this comment.
Comment: Concerning §169.84(b)(6), a commenter stated that they agreed with eliminating the need to weigh each animal.
Response: The commission agrees that this was a good proposed amendment to the rule. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(b)(8), a commenter stated that the animals given sodium pentobarbital by intraperitoneal injection should not have to be placed in a quiet area without physical contact with other animals during the dying process because the commenter does not consider dogs and cats to be "sensitive species." The commenter felt that this would place extensive logistical burdens on government-operated facilities, so the commenter requested an exemption for government-operated facilities if this revision is incorporated. The commenter then stated that the current standards for euthanasia should remain in place. The commenter also felt that this requirement was "codifying" the AVMA Guidelines on Euthanasia (June 2007); the commenter expressed that these are recommendations, not law, and they do not apply as well for government-operated animal shelters as they do for private or non-profit veterinary facilities.
Response: The commenter presents conflicting requests and an element of confusion because this requirement is already a current standard in the rule; it was just renumbered from §169.83 to §168.84. In that it has been a requirement since May 2004, no additional burdens on government-operated facilities will be incurred. Additionally, the AVMA Guidelines on Euthanasia (June 2007) is cited for euthanasia techniques in the Health and Safety Code, Chapter 821, for these rules; however, the statute is more restrictive than these guidelines for euthanasia of dogs and cats. The AVMA Guidelines on Euthanasia (June 2007) recommends that, due to the extended dying process associated with intraperitoneal injection, an animal euthanized by this route of injection be placed in a quiet area to minimize excitement and trauma. The AVMA does consider both dogs and cats to be "sensitive species." These are species that are sensitive to signaling factors (for example, pheromones) released during situations in which fear and anxiety are invoked. This type of "alarm scent" emitted by an animal when frightened or wounded can elicit fear responses in other animals. The AVMA stated that dogs and cats respond to pheromones and, therefore, are considered to be "sensitive species." No changes were made to the rule as a result of this comment.
Comment: Concerning §169.84(c), a commenter stated not being an advocate of carbon monoxide euthanasia for any dogs or cats and felt that this form of euthanasia should be reserved only for use in reptiles and avian species or perhaps very fractious animals that cannot be restrained without jeopardizing the safety of the handling personnel. The commenter felt that avoiding the carbon monoxide chamber altogether seemed to be a better utilization of shelter personnel, veterinary professionals, or technicians (except for reptiles and avian species); additionally, reptile and avian carbon monoxide chambers could be smaller, use less carbon monoxide, and thereby pose less of a human health hazard as well.
Response: The commission disagrees because the Health and Safety Code, Chapter 821, allows the use of commercially-compressed carbon monoxide for dogs and cats in a shelter and mandates that the commission establish rules pertaining to its use in animal shelters. Unless the statute is amended, the inclusion of this method of euthanasia cannot be eliminated in its rules. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(c)(1), a commenter wanted the language to read, "It must be performed in a commercially manufactured carbon monoxide chamber." The commenter stated that many shelters are using "make shift" chambers, resulting in gross inefficient operation and tragic inhumane deaths.
Response: Although the commission agrees with this concept, there are very few manufacturers of these chambers and the expense of purchasing one could cause economic hardship for some shelters. Compliance with the rule mandates that non-commercially manufactured carbon monoxide chambers be designed and constructed, at a minimum, to equal the effectiveness of a commercially manufactured chamber. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(c)(5), a commenter stated that even though this is a "should," since the chamber must be outside or in a well-ventilated area, if it is outside in the summer, there is a good chance the ambient temperature of the atmosphere will be above 85 degrees. The commenter suggested adding a recommendation that outdoor facilities should use the chamber early in the day before the ambient temperature begins to rise.
Response: The commission agrees and has added the recommendation to use the chamber during early morning.
Comment: Concerning §169.84(c)(6), a commenter recommended adding "All such equipment must be inspected at least once a year by a qualified technician to ensure it is in proper working order. A certificate containing the date, findings and corrective measures taken shall be signed by the inspector, and posted in the room where the chamber is located." The commenter stated that in order to have safe and humane euthanasia by means of a carbon monoxide gas chamber, all of the equipment must be in good working order and operative during each operation of the chamber. By adding the annual inspections and the replacement of gaskets and seals (as recommended by manufacturers of these chambers), failure to achieve these critical elements of operation is less likely.
Response: Although the commission agrees with the concept of inspection of carbon monoxide chambers, there is not an accepted standard for qualified technicians for this type of inspection. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(c)(7), a commenter recommended rewording to say "To ensure death, animals must be exposed to the carbon monoxide gas concentration set forth in paragraph (c)(4) above for a minimum of thirty minutes." The commenter stated that euthanasia technicians don't confirm cessation of respiratory movement before they open the chamber. Often the visibility in the chamber is not sufficient to accurately determine respiratory cessation. The commenter felt that leaving the animals in the chamber for a minimum time limit of "thirty minutes" instead of "five minutes" would help protect against animals still possessing life functions and prevent the employees from rushing the process.
Response: The commission disagrees because no research source could be located to validate this specific time recommendation. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(c)(12), a commenter stated that it seemed that some means of measuring decreased respiratory function was being thrust upon the animal shelter personnel in order to effectively adopt this rule; in addition, a determination of pregnancy also becomes a necessary component on the shelter's responsibility list. The commenter suggested adding wording pertaining to there being some veterinary supervision included in determining which animals are eligible for carbon monoxide euthanasia versus the intravenous route. By doing so, additional documentation would be necessary to support a veterinarian's examination of the animals prior to carbon monoxide chamber admission.
Response: The commission disagrees. Many shelters do not have veterinary oversight; requiring veterinary supervision would eliminate their capability to conduct euthanasia. Additionally, the wording in the proposed rule already includes the phrase "any animal that could be anticipated to have decreased respiratory function, such as the elderly, sick, injured, or pregnant." It does not mandate that these conditions be determined by medical testing or veterinary oversight. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(c)(12), a commenter stated this should read, "such animals may be resistant" instead of "such animals are resistant."
Response: The commission agrees and has replaced the word "are" with the words "may be."
Comment: Concerning §169.84(c)(12), a commenter disagreed with the 16-weeks of age cutoff for chamber euthanasia. The commenter felt that this was an arbitrary number and not based on any scientifically conducted study to specifically address this claim. The commenter stated that although the commenter could not change the AVMA's euthanasia recommendations, the commenter perceived AVMA as biased toward carbon monoxide euthanasia and doubted that this would ever change.
Response: The commission disagrees because not using carbon monoxide alone in animals less than 16 weeks of age was based on the AVMA Guidelines on Euthanasia (June 2007), which sets the standard for animal euthanasia techniques. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(c)(13), a commenter stated that since the rules require the use of independent sections or cages to separate individual animals if more that one animal is euthanized at a time, the "same species" requirement in this paragraph could be deleted. The commenter felt that if the animals are "compatible" and in separate sections or cages, that should be sufficient protection for the animals and their welfare. The commenter did not feel that an animal control officer should have to run the carbon monoxide chamber through two cycles if they had one dog and one cat to euthanatize. The commenter felt that both animals could be euthanatized at once without causing mental anguish to either. The commenter felt that it would be obvious to the animal control officer to not place incompatible animals in the chamber at once, just as the animal control officer would not put two incompatible dogs into the chamber at once.
Response: The commission disagrees. The "same species" language was taken from the AVMA Guidelines on Euthanasia (June 2007). Additionally, every attempt should be made to reduce stress for the animals in the euthanasia environment. No change was made to the rule as a result of this comment.
Comment: Concerning §169.84(e), a commenter recommended adding the following language at the end of this section, "either cardiac stick to verify cessation of heart function or by rigor mortis." The commenter stated hearing reports of numerous complaints from Texas animal shelters where animals have awakened in the freezer, at the landfill, and in the incinerator. The commenter felt that examination is not enough to confirm death. For instance, some shelters are confirming death by touching the eye or pinching between the toes for reflex and movement, which doesn't ensure death, but only that the animal is heavily anesthetized. The commenter felt the need to be very specific on what is meant by confirmation of death.
Response: The commission disagrees. The Health and Safety Code, Chapter 821, lists "techniques for verifying an animal's death" as a required topic in euthanasia training courses. Therefore, specific modes for this verification are covered in the mandated training courses. No change was made to the rule as a result of this comment.
The following change has been made to provide consistency of terms.
Change: Concerning §169.84(b)(4), the last reference of "animal" was changed to "animal(s)" for consistency in wording throughout the rule.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.