Opn. No.

Requestor: Hon. Lorna H. McBarnette, Executive Deputy Commissioner New York State Department of Health Corning Tower, Empire State Plaza Albany, New York 12237

Written by: Robert Abrams, Attorney General

Your counsel seeks the advice of this office whether a municipal animal control facility (a "pound") or incorporated society for the prevention of cruelty to animals (a "society") may provide for the euthanasia of a dog or cat under its custody and control off the premises of the pound or society in group training sessions by applicants who seek registration and certification by the Department of Health (the "Department") as individuals who may euthanize dogs and cats pursuant to Public Health Law § 3305(1)(d) (hereafter the "PHL"). We conclude a pound or society may do so.

Your counsel notes that Chapter 619 of the Laws of 1987 amended Agriculture and Markets Law § 374 (hereafter "AML") and PHL § 3305 to provide for humane procedures for the euthanasia of dogs and cats, to promote the use of sodium pentobarbital ("NPB"), a controlled substance (PHL § 3306, Schedule II[e][3]), in the euthanasia of dogs and cats, and to authorize the Commissioner of the Department to regulate the registration and certification of individuals to euthanize dogs and cats using NPB. Specifically, Chapter 619 of the Laws of 1987 amended AML § 374 by adding subdivisions (2-b), (2-c) and (2-d), which prohibited the use of various euthanizing techniques including the use of the commonly used drug T-61, and by adding (2-e), which bars a pound or society from releasing a dog or cat from its custody or control except for adoption or redemption. AML § 374(2-e) provides as follows:

"No person shall release any dog or cat from the custody or control of any pound, shelter, society for the prevention of cruelty to animals, humane society, dog protective association, dog control officer, peace officer or any agent thereof, for any purpose except adoption or redemption by its owners."

Violation of AML § 374(2-e) constitutes a misdemeanor. AML § 374(2-e) continues the requirements originally enacted prior to 1987 and currently set forth in AML § 118(7-a) as follows:

"Any dog or cat in the custody of a pound or shelter shall be made available for adoption or euthanized subject to the provisions of subdivisions two-a, two-b, two-c, two-d, and two-e of section three hundred seventy-four of this chapter after the time for redemption has expired."

See also, § 118(7), which relates only to dogs, and § 374(1) and (2) which relates only to societies.

The import of these provisions of the AML is that unless a pound or society releases from its custody or control a dog or cat for adoption or redemption, the pound or society is to euthanize or provide for euthanasia of a dog or cat while the dog or cat is in its custody or control. None of the foregoing provisions requires that euthanization occur on the site of the pound or society, so long as the pound or society maintains custody and control of the dog or cat, nor that an employee, rather than an agent, of the pound or society euthanize the dog or cat.¹

The amendment effected by Chapter 619 of the Laws of 1987 to PHL § 3305 reads, in pertinent part, as follows:

"The department [of Health] shall adopt rules and regulations providing for the registration and certification of any individual who, under the direction of the duly authorized and registered agent of an incorporated society for the prevention of cruelty to animals, or municipal animal control facility, uses sodium pentobarbital to euthanize dogs and cats. The department [of Health] may also adopt such other rules and regulations as shall provide for the safe and efficient use of sodium pentobarbital by incorporated societies for the prevention of cruelty to animals and animal control facilities. Nothing in this paragraph shall be deemed to waive any other requirement imposed on incorporated societies for the prevention of cruelty to animals and animal control facilities by state and federal law and regulation." PHL § 3305(1)(d).

In 1987, the Commissioner promulgated the referenced regulations as 10 NYCRR § 80.134. The regulations provide, inter alia, for the registration and certification of individuals (in addition to veterinarians) who may administer a controlled substance to euthanize dogs or cats. An applicant for registration and certification must

"obtain a written certification from two licensed veterinarians or one licensed veterinarian and one licensed animal health technician in which the veterinarians or technicians state that they have observed the proficient use by the applicant, of injections for the euthanasia of dogs or cats." 10 NYCRR § 80.134(f)(2)(iii).

The legislative bill jacket for Chapter 619 of the Laws of 1987 and the transcripts of the attendant Senate and Assembly debates are silent as to how applicants for registration and certification to administer NPB to euthanize dogs and cats may be trained.

We believe that pound or society dogs and cats that are not redeemed or adopted may be euthanized in group training sessions by applicants seeking certification by the Department to administer controlled substances for euthanasia. The pound or society must maintain custody and control of the dog or cat during euthanasia. Custody and control does not mean that euthanasia may only be conducted on the premises of the pound or society. Pound or society officials must ensure that the procedure is being conducted properly and humanely. Further, the NPB must be provided and utilized in accordance with regulations. 10 NYCRR § 80.134.

We note that use of these dogs and cats reduces the need of training centers to purchase dogs and cats from dealers for training purposes.

We conclude that, assuming compliance, as applicable, with provisions of PHL § 504 and 10 NYCRR § 55-1.1 (relating to the humane treatment of living animals by certain institutions) and 10 NYCRR § 80.134 (relating to the possession and administration of NPB to euthanize dogs and cats), and assuming that a pound or society maintains strict custody and control, a pound or society may provide for euthanasia of a dog or cat off the premises of the pound or society in group training sessions by applicants who seek registration and certification by the Department pursuant to Public Health Law § 3305(1)(d).

¹ Under prior law, various provisions of the Agriculture and Markets Law indicated specifically who had authority to euthanize dogs and cats.See, 1974 Op Atty Gen (Inf) 298. Public Health Law §3305(1)(d) now provides that any individual duly registered with and certified by the Department may administer NPB to euthanize dogs and cats. The Department's regulations authorize an applicant for registration and certification to administer NPB under the observation of a veterinarian. 10 NYCRR § 80.134(f)(2)(iii).