Rule-Making Notices (Hearing Notices)

Disease Testing of Fish

Fiscal effect on DNR

This emergency rule will have a fiscal impact on DNR fish hatchery and stocking operations. Under this rule, all VHS-susceptible fish and fish eggs (including VHS-susceptible bait species) must be tested for VHS before being stocked to Wisconsin public waters if they were either (1) collected from a wild source within the preceding 12 months or (2) kept on a fish farm that received fish or fish eggs of any species collected from a wild source within the preceding 12 months. This emergency rule provides a limited exemption for fish or fish eggs that are reintroduced to the same waters from which they are collected (see below).

Under current rules, a veterinarian or other qualified fish health inspector must issue a fish health certificate for fish or fish eggs stocked into Wisconsin public waters. The inspector must issue the health certificate on a form prescribed by DATCP. Under this emergency rule, if the fish are of a VHS-susceptible species, and were either (1) collected from a wild source within the preceding 12 months or (2) kept on a fish farm that received fish of any species collected from a wild source within the preceding 12 months, the fish health certificate must certify that the fish are VHS-free. The certification must be based on VHS tests conducted according to approved methods (the American Fisheries Society test or the World Organization for Animal Health test) that DATCP identifies on the health certificate form.

VHS tests must be conducted on a statistically representative test sample of fish drawn from the tested species or farm. The average cost to test and certify a single lot of fish is approximately $500 (actual costs vary depending on test method, number of fish in the lot, number of different species in the lot, etc.). A single fish farm might need to test from 1-30 lots per year, depending on the source and species of the fish, the number of separate fish lots kept on the fish farm, and the purposes for which the fish are kept and distributed.

DNR annually registers approximately 100 fish farms with DATCP. Thirteen of those fish farms are state-owned fish hatcheries. The remainder are registered by DNR but owned by private DNR “cooperators" (as registrant, DNR assumes legal responsibility for compliance with fish health rules). DATCP estimates that DNR will need to conduct VHS tests on a combined total of approximately 120 lots of fish per year (including fish at state hatcheries and “cooperator" fish farms registered by DNR).

Assuming an average test cost of $500 per lot, the total cost to DNR would be approximately $60,000 per year. However, DNR has already implemented a number of internal controls and VHS testing protocols, so the added cost of this rule will be less than $60,000. DNR costs may increase if USDA finds that additional fish species are susceptible to VHS (the amount of the increase will depend on which fish species are found to be susceptible).

Under this emergency rule, fish and fish eggs are exempt from VHS and other fish health testing requirements if they are reintroduced into the same body of water from which they were collected, for the purpose of increasing or rehabilitating a desirable sport fish population. (DATCP and DNR must approve the reintroduction, and a veterinarian or fish health inspector must still issue a fish health certificate based on a visual inspection.) This exemption will make it easier for DNR, local governments and others to continue programs (including so-called “walleye wagon" programs) to supplement the natural reproduction of important sport fish species.

Fiscal effect on DATCP

DATCP will incur added costs to administer and enforce the fish health testing requirements under this emergency rule (and any subsequent “permanent" rule). DATCP will need at least 2.0 FTE additional staff to review and process a large volume of fish health certificates in a timely manner; to train fish health inspectors to collect samples for VHS testing; to provide compliance information and respond to industry inquiries; to conduct inspections and monitor compliance; to conduct investigations of possible law violations; and to initiate enforcement actions if necessary.

The 2.0 FTE staff will have a combined total cost of at least $120,000 per year, including salary, fringe benefits and support costs. DATCP will attempt to absorb these costs in the short term by shifting staff from other important disease control responsibilities, but DATCP will not be able to do so indefinitely without putting other livestock sectors at unacceptable risk. DATCP will seek federal grant funds to cover some of the costs, but federal funding is not guaranteed.

Fiscal effect on University of Wisconsin

This emergency rule may have a slight fiscal impact on University of Wisconsin research facilities and some local governments, to the extent that they may operate fish farms or procure fish from farms affected by this rule. However, the effect will likely be minimal unless those entities are engaged in distributing VHS-susceptible fish or fish eggs from wild sources.

Fiscal effect on local governments

This emergency rule exempts local governments from VHS and other fish health testing requirements when they reintroduce sport fish or fish eggs into the same body of water from which they were collected, for the purpose of increasing or rehabilitating the fish population. (DATCP and DNR must approve the reintroduction, and a veterinarian or fish health inspector must issue a fish health certificate based on a visual inspection.) This exemption will make it easier for local governments to continue current programs (including so-called “walleye wagon" programs) to supplement the natural reproduction of important sport fish species.

Disease-Free Certification of Farm-Raised Deer

This emergency rule extends brucellosis-free herd certification from 2 years to 3 years (a herd owner may request a shorter term), and reduces the required number of certification tests from 3 whole herd tests to 2 whole herd tests, consistent with tuberculosis-free herd certification. That will allow herd owners to conduct simultaneous tests for both diseases. Simultaneous testing will reduce testing costs and limit stress on tested deer. The change will have no fiscal impact on DATCP, on other agencies of state government, or on local government.

State fiscal effect

Increase in costs that are not possible to absorb within the agency's budget.

Local government fiscal effect

Increase in costs; permissive.

Types of local governmental units affected

Towns, villages, cities, counties, school districts.

Fund sources affected

GPR, PRO

Affected Ch. 20 appropriations

Section 20.115 (2) (a) and (ha), Stats.

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 08-067 CR 08-067

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed amendment to Chapter ATCP 123, Wis. Adm. Code, relating to customer access to subscription video services.

Hearing Information

Tuesday, August 26, 2008

At 1:00 p.m.

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin, 53718-6777

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by Monday, August 18, 2008, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submission of Written Comments

DATCP will hold a public hearing at the time and place shown above. DATCP invites the public to attend the hearing and comment on the proposed rule. Following the public hearing, the hearing record will remain open until Friday, September 12, 2008 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, by email to [e-mail] or online at https://apps4.dhfs.state. wi.us/admrules/public/Home

To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator Keeley Moll at the address above, by emailing to [e-mail] or by telephone at [phone].

Copies of Proposed Rule

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or emailing [e-mail]. Copies will also be available at the hearings. To view the proposed rule online, go to:

https://apps4.dhfs.state.wi.us/admrules/public/Home

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

2007 Wisconsin Act 42 regulates providers of subscription video services. Among other things, the act regulates customer access to video services, and prohibits discrimination in the provision of video services based on race or income. This rule interprets and clarifies those regulations.

Statutes interpreted

Section 66.0420 (8), Stats.

Statutory authority

Sections 66.0420 (13) (a) and 93.07 (1), Stats.

Explanation of statutory authority

2007 Wisconsin Act 42 eliminates municipal franchising of cable television services and creates a new state system for franchising and regulating “video service providers" (including but not limited to cable television service providers). The act regulates subscription video services provided, under a state franchise, via cable or local telephone lines. Among other things, the act does all of the following (see s. 66.0420 (8), Stats.):

•   Prohibits a state-franchised video service provider from denying access to a “group" of potential customers based on race or income. A provider has a defense against a claim of discrimination based on income if, within 3 years after the provider first offered video services, at least 30% of the households with access to the provider's video service are “low-income households." The Department of Agriculture, Trade and Consumer Protection (“DATCP") may extend the applicable time period, at the request of a video service provider.

•   Requires a state-franchised “large telecommunications video service provider" to do all of the following, unless DATCP grants a waiver or extension:

•   Provide video service access to at least 35 percent of the households in each of the provider's basic local exchange service areas within the state franchise area no later than 3 years after the provider first offers video service.

•   Provide video service access to at least 50 percent of the households within each basic local exchange service area not more than 5 years after the provider first offers video service in that area, or not more than 2 years after at least 30 percent of the households with access have subscribed for at least 6 consecutive months, whichever occurs later.

•   Requires a state-franchised “large telecommunications service provider" to file an annual report with DATCP regarding the provider's progress in complying with minimum access requirements.

•   Allows a video service provider to satisfy access requirements with an alternative technology (other than satellite service) that offers the same basic service, function and content features offered by the provider's normal video service network.

•   Provides that a telecommunications video service provider is not required to provide video service outside its basic local exchange service area.

•   Provides that an incumbent cable service provider is not required to provide video service outside the area in which it provided cable television service when it first received a state franchise.

Wis. Act 42, as passed by the Legislature, gave DATCP very limited authority to adopt rules interpreting the access and anti-discrimination provisions of the new video services law. The Governor's partial veto effectively expanded DATCP's rulemaking authority to interpret those provisions. In his veto message, the Governor stated: “It is imperative that the state agencies responsible for …enforcing the anti-discrimination provisions have the ability to interpret these statutes through administrative rule."

Rule content

This rule incorporates and clarifies certain video service access and anti-discrimination provisions contained in Act 42. This rule does all of the following:

•   Clarifies that a “group" means 2 or more households. A video service provider denies access to a “group" if it denies access to all of the households comprising that “group."

•   Defines “household" consistent with current statutes.

•   Defines “low-income household" as a household with a combined annual income equal to less than 200% of the federal poverty level for a family of 3.

•   Clarifies that a video service provider provides video service “access" to a household if the provider is able to provide video service to that household using the provider's normal service network or an equivalent alternative technology, regardless of whether any customer has ordered the service.

•   Spells out the procedure by which a video service provider may ask DATCP to waive or extend the deadline for complying with a minimum access requirement:

•   A provider must submit a request in writing, in hard-copy and electronic form. The request must justify the proposed waiver or extension, based on statutory criteria, and must include facts and evidence supporting the justification. DATCP may request relevant supplementary information.

•   Within 30 business days after DATCP receives a written request, it must issue a proposed order granting the request, denying the request, or granting the request in modified form. DATCP must issue a press release announcing the proposed order and inviting public comment. DATCP may hold one or more public hearings on the proposed order.

•   Within 60 business days after DATCP issues a proposed order, DATCP must issue a final order. If the final order differs from the proposed order, DATCP must explain the reasons for difference.

•   Clarifies that a “large telecommunications service provider" must file its required annual progress report with DATCP by January 31 of each calendar year, beginning with the first calendar year after the provider first provides video service under a state franchise. The provider must provide annual progress reports for at least 5 years, unless DATCP makes an earlier written determination that the provider has met applicable minimum access requirements.

In a separate rule-making proceeding (Clearinghouse Rule No. 08-027), DATCP has proposed a definition of “video service" that would also apply to this rule. That definition is identical to the definition in s. 66.0420 (1) (y), Stats.

Comparison with federal regulations

Federal law regulates cable television service, including cable ownership, use of cable channels, and cable franchising. Federal law also regulates video services provided by telephone companies.

State and local governments may regulate video services, as long as the regulations do not conflict with federal law. Federal law imposes consumer protection and customer service obligations on cable television service providers, but does not prevent states from imposing more stringent requirements.

Federal law does not establish minimum access requirements. Federal law does prohibit discrimination against a “group" of customers based the income of residents of the “local area" in which the “group" resides. Federal law does not define “group" or “local area."

Comparison with rules in adjacent states

During 2007, Illinois, Michigan and Iowa enacted laws that create a new state system for franchising and regulating video service providers. Minnesota has yet to adopt such a law. The laws adopted by Illinois, Michigan and Iowa are similar in relevant respects to the Wisconsin law, but are not identical to the Wisconsin law.

Illinois. The Illinois law does the following:

•   Prohibits a video service provider from denying access to any potential residential providers because of race or income of the residents in the local area in which the potential subscribers reside; and does not provide the video service provider with an affirmative defense to an allegation of discrimination.

•   Requires a large video service provider to provide access to 25% of the households in its telecommunication service area within 3 years after it began providing video service, and 35% within 5 years after it began providing video service. The provider is not required to meet the 35% requirement until 2 years after at least 15% of the households with access to the provider's video service subscribe to the service for at least 6 months.

•   Requires, within 3 years after the video service provider is granted a franchise, that 30% of the households with access to the video service shall be low-income.

•   Requires the video service provider to file with the state an annual report describing factors related to the access requirements.

•   Allows the video service provider to assert as a defense to a violation of the access requirements a need for an extension of the time requirements based on stated factors.

•   Defines “low-income household" as those residential households within the video service provider's existing local exchange area where the average annual household income is less than $35,000 based on United States Census Bureau estimates adjusted annually.

•   Defines “access" to mean that the video service provider is capable of providing broadband Internet capability and video programming at the household address using any technology except satellite television regardless of whether any customer has ordered the service.

Michigan. The Michigan law does the following:

•   Prohibits a video service provider from denying access to service to any group of potential residential subscribers because of the race or income of the residents in the local area in which the group resides.