This rule repeals and recreates current rules related to paratuberculosis in cattle and goats. Paratuberculosis is commonly known as Johne's disease.
Background
Johne's disease is a serious and widespread disease of cattle and goats. The disease is slow to develop, and an infected animal may go for years without showing symptoms. An infected animal, which is free of symptoms at the time of sale, may spread the disease to a buyer's herd. The disease has a serious impact on milk production, and is ultimately fatal to infected animals.
There is, at the present time, no test which can definitively rule out Johne's disease in an individual animal or herd of animals. However, annual herd test results can help buyers and sellers assess the risk that symptom-free animals may be infected with Johne's disease. Herd testing can also help herd owners manage or eliminate the disease in their herds.
Currently, under s. 95.195, Stats., there is in every contract for the sale of cattle and goats an “implied warranty" that the animals are free of Johne's disease. If an animal is infected with Johne's disease at the time of sale, the buyer may hold the seller liable under this “implied warranty" (even if the seller did not know that the animal was infected) unless the seller does one of the following prior to sale:
• Complies with testing and disclosure requirements prescribed by the Department. (Under current Department of Agriculture, Trade and Consumer Protection (DATCP) rules, the seller must conduct annual herd tests and disclose test results to the buyer.)
• Gives the buyer a written disclaimer that the animals are being sold “as is," without any Johne's disease warranty.
In practice, few sellers have chosen the test and disclosure alternative. Instead, many herd owners have sold their cattle with the “as is" disclaimer (which provides no meaningful herd information to buyers). The current law and rules have thus failed to achieve their goal of promoting Johne's disease testing. Current DATCP rules also discourage testing by prohibiting the sale of confirmed Johne's disease reactors, even when the seller discloses that the animals are reactors.
Herd testing is critical for the control of Johne's disease. If herd owners do not test, this serious disease will continue to spread. The Department does not propose to mandate statewide herd testing for Johne's disease (no other state has taken that step). However, the Department proposes the following steps to encourage more voluntary herd testing by sellers who wish to avoid liability under the “implied warranty" law:
• First, the Department proposes to change its current testing and disclosure rules. This rule establishes simpler, more realistic testing and disclosure standards, based on the concept of herd risk. This rule also permits the sale of confirmed Johne's disease reactors, provided that the animals are permanently identified as reactors and the seller discloses that the animals are reactors.
• Second, the Department proposes legislation to eliminate the “as is" disclaimer option under s. 95.195, Stats. Such legislation would give herd owners more incentive to test and disclose. Sellers would face a clear choice between the “implied warranty" on one hand, and testing and disclosure on the other.
Rule Contents; General
Under this rule, a sale of cattle or goats is exempt from the “implied warranty" under s. 95.195, Stats., if the seller discloses all of the following to the buyer, in writing:
• The current Johne's disease classification of the herd from which the animals are sold. Herd classifications (see below) are based on annual herd tests. If the source herd is not tested annually, the herd is automatically classified “Maximum risk for Johne's disease."
• That the animals are confirmed Johne's disease reactors, if that is the case.
Under this rule, a sale of cattle or goats is also exempt from the “implied warranty" under s. 95.195, Stats., if the animals are being sold directly to slaughter. (No testing or disclosure is required; however, if an animal has been tested and is a reactor, it must be permanently marked.)
Test Eligible Animals
Under this rule, all bulls over 3 years old are considered “test eligible" animals. All other cattle over the average age of second lactation in the herd are considered test eligible. All goats over the age of 18 months are considered test eligible.
Annual Herd Test
An annual herd test may be a “whole herd test" or a “random herd test." A “whole herd test" must include every test eligible animal in the herd. In a “random herd test," an accredited veterinarian randomly selects a test group from the whole herd. The test group must include at least 30 test eligible animals, or at least 10 percent of the test eligible animals in the herd, whichever group is larger.
The date of the first annual herd test under this rule establishes an “anniversary date" for each subsequent annual herd test. Each year's test must be conducted on the “anniversary date," or within 2 months before or after the “anniversary date."
Herd Classifications
Under this rule, every herd of cattle and goats is classified in one of the following categories, in ascending order of risk for Johne's disease (herd owners who manage for Johne's disease can improve their classification over time):
• Johne's preventive management level A. The Department will classify a herd as “Johne's preventive management level A" if an annual herd test (random or whole herd) reveals no Johne's disease reactors. The Department will add a star to a herd's “Johne's disease preventive management level A" classification for each consecutive year the herd maintains that classification.
• Johne's preventive management level B. The Department will classify a herd as “Johne's preventive management level B" if fewer than 5% of the animals in a whole herd test are Johne's disease reactors.
• Johne's preventive management level C. The Department will classify a herd as “Johne's preventive management level C" if at least 5% but not more than 15% of the animals in a whole herd test are Johne's disease reactors.
• Johne's preventive management level D. The Department will classify a herd as “Johne's preventive management level D" if any of the following apply:
ä A random herd test reveals one or more Johne's disease reactors, unless the Department classifies the herd as “Johne's preventive management level B" or “C" based on a follow-up whole herd test.
ä A whole herd test reveals more than 15% Johne's disease reactors.
• Maximum risk for Johne's disease. A herd is automatically classified “Maximum risk for Johne's disease," without any action by the Department, if the herd owner fails to complete a timely annual herd test. “Maximum risk for Johne's disease" is the least desirable herd classification, because it signifies that the herd owner does not have an annual paratuberculosis testing program. A person buying cattle from such a herd faces an unknown, but substantial, risk that the cattle are infected with Johne's disease.
This rule does not require a herd owner to have an annual herd test, or to have the herd classified based on herd testing. But if a herd owner does not have the herd classified based on annual herd tests that comply with this rule, the herd is automatically classified “Maximum risk for Johne's disease."
A herd owner is not required to disclose the herd classification when selling animals from the herd. But if the herd owner does
not disclose the herd classification, the owner sells the animals subject to an “implied warranty." If it turns out that the animals were infected with Johne's disease at the time of sale, the seller may then be liable to the buyer for any damages which result. There is no “implied warranty" if the herd owner discloses the herd classification at the time of sale, or sells the animals directly to slaughter.
A herd owner may elect to test (and cull) animals without having the test results used for herd classification purposes. However, all Johne's disease test results must be reported to the Department, and all confirmed Johne's disease reactors must be permanently identified as such. No confirmed reactors may be moved or sold (even to slaughter) unless they are identified as reactors.
Commingled Animals; Classification
Animals added to a herd from a herd with a less desirable classification retain that less desirable herd classification for 120 days but do not affect the classification of the herd to which they are added. However, if animals from herds with different classifications are temporarily assembled for sale or shipment (other than for a consignment sale), the least desirable herd classification applies to all of the temporarily assembled animals.
Notice to Herd Owner
Whenever the Department classifies a herd based on an annual herd test, the Department must promptly provide the herd owner with all of the following information in writing:
• The individual test results for each animal included in the herd test. Test results must be identified with each animal's official individual identification.
• The herd classification. A herd classification takes effect when the Department issues the classification notice, and immediately supersedes any prior classification.
Test Procedure
The person conducting an annual herd test must be an accredited veterinarian, or an employe of the Department or USDA-APHIS. The person must select the test group, determine the type of test to be performed, collect an appropriate sample from each test animal, identify each sample with the animal's official individual identification and sample collection date, and transmit the samples to the testing laboratory.
Annual herd test samples must be tested by the Department, the federal bureau, or a laboratory approved by the Department or the federal bureau. The laboratory must use one of the following tests:
• The enzyme linked immunosorbent assay (ELISA), except that the ELISA test may not be used for goats.
• The fecal culture test.
• Another test approved by the Department.
Test Results
A laboratory performing Johne's disease tests must report the test results to the Department within 10 days. The Department will not use the test results to classify a herd unless the herd owner asks the Department to do so. If the herd owner asks the Department to classify the herd based on the test results (and if the test procedure complies with this rule), the Department will classify the herd within 30 days.
Johne's Disease Reactors
Under this rule, an animal is a Johne's disease reactor if any of the following applies:
• It tests positive on the enzyme linked immunosorbent assay (ELISA), unless it subsequently tests negative on the fecal culture test. (The ELISA test applies only to cattle, not goats.)
• It tests positive on the fecal culture test.
• It tests positive on any other test which the Department approves.
Current rules prohibit the sale of Johne's disease reactors (except to slaughter). This rule permits the sale of Johne's disease reactors if all of the following apply:
4 The seller discloses to the prospective buyer in writing, prior to sale, that the animals are reactors.
4 The animals are permanently identified as reactors.
Under this rule, an accredited veterinarian must permanently identify a confirmed Johne's disease reactor, even if the herd owner does not sell the animal or sells it only to slaughter. The veterinarian must identify the animal within 30 days after the animal tests positive on an ELISA or fecal culture test. If the herd owner wishes to confirm a positive ELISA test with a fecal culture, the veterinarian must collect the fecal sample within 30 days. If the fecal culture also tests positive, the veterinarian must then identify the animal as a Johne's disease reactor within 30 days.
Herd Vaccination
Under this rule, no person may vaccinate cattle for Johne's disease except under a herd agreement with the Department. The Department may not authorize vaccination in any herd in which the percentage of reactors in the last annual whole herd test was less than 7%, unless special circumstances warrant vaccination in that herd.
Misrepresenting Herd Classification
Under this rule, no person may misrepresent the classification of the herd from which cattle or goats are being sold. A seller who misrepresents a herd classification is not exempt from the implied warranty under s. 95.195, Stats., and is subject to possible penalties under s. 95.99, Stats. The Department may investigate alleged misrepresentations.
Department Disclosure of Herd Classification
Under this rule, the Department may disclose a herd classification to a 3rd party with the written authorization of the herd owner.
Interstate Sales
Wisconsin's implied warranty law and this rule apply to cattle and goats from outside Wisconsin that are sold in this state (subject to Wisconsin contract law). Wisconsin's implied warranty law and this rule do not apply to sales of cattle and goats that occur outside this state (subject to another state's contract law).
Delayed Effective Date
This rule has a delayed effective date of July 1, 2000. The delayed effective date is intended to give producers time to complete testing and receive classifications before the new disclosure provisions take effect.
Fiscal Estimate
The complete fiscal note is available on request.
For purposes of this fiscal estimate, it is estimated that Johne's disease testing in Wisconsin will increase by 20,000 tests in SFY 2001 (State Fiscal Year 2001) due to the proposed rule.
Revenue:
Presently, the Wisconsin Animal Health Laboratory charges a user fee for Johne's disease tests. The user fee offsets the cost of performing the tests. An increase of 20,000 tests would generate an estimated PR fund revenue increase of $105,300.
Expense:
The Wisconsin Animal Health Laboratory will incur $105,300 of salary, fringe and supply expense in performing an additional 20,000 Johne's disease tests. Additionally, the Department will expend $15,500 of GPR funds to support the Johne's disease program purposed in this rule. Veterinary staff time will increase to cover classifying the additional herds testing for Johne's disease and to provide education to the state's producers and private veterinarians on Johne's disease and the proposed rules. Program assistant staff time will increase due to the increased testing, with increased computer entry of test information, herd classification certificate issuing, correspondence and filing.
Initial Regulatory Flexibility Analysis
General Overview
Johne's disease (paratuberculosis) causes significant financial losses for Wisconsin's cattle (both dairy and beef) and goat producers. In the past, the producers have been unable to make informed judgments about the risk of Johne's disease in the animals they purchase because the information was not available. This rule establishes a voluntary program designed to permit producers who want to make informed decisions to obtain the necessary information. It is also designed to permit people who will be selling cattle or goats to provide beneficial information to potential buyers, avoid the threat of an implied warranty claim, and fairly represent the extent to which his animals have tested negative for Johne's disease.
Section 95.195, Stats., establishes an implied warranty that animals sold are free of Johne's disease and gives the purchaser a cause of action against a seller if the animal is infected unless the seller has either sold the animal “as is" or has complied with the Department's rules for avoiding the implied warranty. This rule modifies existing rules by implementing a herd risk based classification and exempting the animal seller from the implied warranty if the seller discloses the herd risk classification in writing prior to the sale. (The Department intends to seek legislation to eliminate the “as is" loophole in the implied warranty statute since it is no longer needed to permit sellers to sell animals without testing or being subject to the implied warranty provision.)
Since this program is totally voluntary, it won't have any impact on farmers or producers unless the person chooses to participate. If the person chooses to participate in the program the rule will have effects. Its primary impact is to give people more choices and to provide information to assist them in making those choices.
Cattle and Goat Sellers
All herds of cattle and goats will be classified as to risk level for Johne's disease based on test results. If the herd owner chooses not to test, or not to request classification on the basis of a test, the herd will be classified “Maximum risk for Johne's disease." If the herd owner tests and requests classification the Department will classify the herd “Johne's Preventative Management Level A, B, C, or D" based on the prevalence of disease in the animals and the number of animals tested.
The most desirable classification “Johne's Preventative Management Level A" may be obtained by testing 30 animals or 10% of the herd, whichever is a larger number. If all of the animals test negative, the herd will be classified at the “A" level. If any animal tests positive, the herd will be classified at the “D" level. Levels “B" and “C" will only be assigned if the whole herd was tested and will reflect the prevalence of test positive animals in the herd.
This program specifically permits the herd owner to have tests performed without being used for classification. Therefore, the owner may have a random test (30 animals or 10% of the herd) performed without seeking classification. If no positive animals are identified, the owner may seek classification and will receive the “A" classification. If there are positive animals identified, the owner may undertake an immediate whole herd test to determine whether he can be classified upward to a level “B" or level “C." It also permits the owner to undertake a whole herd test and cull approach and once all positive animals are culled the herd would be eligible for the “A" classification. In this way, this rule increases the choices available to the herd owners and permits the herd owner to attain the most desirable classification in a relatively short time.
Herd owners who choose to participate in the program will incur the costs of testing at least 30 animals annually. However, since the program is voluntary, the owner would be able to weigh that cost against the benefits to be gained by having information on the status of the herd.
Cattle and Goat Purchasers
At the present time, the person who plans to purchase cattle or goats has no way of determining the risk that the purchased animals are infected with Johne's disease. Producers who have experienced the financial impact of having their herds become infected with Johne's disease and have incurred the expense required to clean up their herds will frequently seek to purchase animals which they have reason to believe have a lower risk of being infected. This rule provides a way for those producers to make an informed judgment about which animals have the lower risk.
Since the program is completely voluntary, no producer is required to purchase animals of any specific classification. For example, if the purchaser already has a herd which is classified as a level “B" herd and adds animals from a level “C" herd, the combined herd retains its “B" classification (although the “C" animals do not achieve the “B" classification until they have been in the herd for 120 days).
The producer can decide for himself or herself what level risk the producer is willing to undertake and refuse to purchase animals with a level of risk higher than the level the producer is willing to accept. If purchasers produce more demand for low risk animals than sellers are putting on the market, the purchaser will decide for himself or herself whether to bid up the price to get the more desirable animals or to accept higher risk animals at a price the purchaser finds more acceptable. The effect of the rule is to create options for the purchaser, and to provide information the purchaser can use to evaluate the risk associated with purchasing specific animals.
Veterinarians
The third group of small business people potentially affected by this rule are veterinarians. They may experience an increase in their business associated with additional testing to be performed. The rule does not change reporting requirements for the veterinarians. Nor does it require veterinarians to expend additional money for the supplies and services they utilize to provide their service to the producers, except that the veterinarian may need to obtain a new supply item to be used for permanently identifying reactor animals.
