Ch. NR 27
S. NR 27.01 (3), (5), (6), (7) and (9) had corrections
made under s. 13.93 (2m) (b) 7., Stats.
S. NR 27.02 (entire section) had a correction made
under s. 13.93 (2m) (b) 7., Stats.
S. NR 27.05 (1) had a correction made under
s. 13.93 (2m) (b) 7., Stats.
S. NR 27.07 (1) (a) and (c) and (3) had corrections
made under s. 13.93 (2m) (b) 7., Stats.
Revenue:
Ch. Tax 1
S. Tax 1.11 (3) (e) had a correction made under
s. 13.93 (2m) (b) 7., Stats.
Technical College System:
Ch. TCS 4
S. TCS 4.15 (entire section) had a correction made
under s. 13.93 (2m) (b) 7., Stats.
S. TCS 4.23 (entire section) had a correction made
under s. 13.93 (2m) (b) 7., Stats.
Ch. TCS 10
S. TCS 10.06 (3) had a correction made under
under s. 13.93 (2m) (b) 7., Stats.
ERRATA
Items reprinted to correct printing errors such as dropped copy (or other errors) are indicated in the following listing:
Agriculture, Trade and Consumer Protection
Ch. ATCP 31
S. ATCP 31.07 reprinted to correct note.
Final Regulatory Flexibility Analyses
1.
Agriculture, Trade & Consumer Protection
(CR 98-142)
Ch. ATCP 77 - Certification of laboratories engaged in public health testing of milk, water and food
Summary of Final Regulatory Flexibility Analysis:
The repeal and recreation of ch. ATCP 77, Wis. Adm. Code, Laboratory Certification will have a small fiscal impact on small businesses as defined in s. 227.114 (1)(a), Stats. Approximately 200 laboratories are currently licensed and inspected by the department. The laboratories range from small establishments that are only certified for one test to large dairy cooperatives that have a full service milk testing laboratory at one or more locations.
The laboratory certification rule replaces the existing rule (HSS 165). The standards are based on established federal (FDA and EPA) guidelines and are designed to be consistent with other state and local requirements. The changes from HSS 165 are designed to replace the clinical language with language that is more applicable to milk, water, and food testing laboratories. The fee structure outlined in the current ATCP 77 is unchanged.
Key issues in the proposed rule include:
•
modifying all language that refers to clinical laboratory testing and substitute language that is applicable to milk, water, and food laboratories;
•
application requirements;
•
procedures for suspending or revoking a laboratory's certification;
•
basic requirements for laboratory facilities and equipment;
•
responsibilities of a laboratory administrator;
•
record keeping and reporting requirements, including the reporting of changes in laboratory facilities, equipment and personnel;
•
adding the requirement for proficiency testing for water laboratories and identification of acceptable levels of performance; and
•
certification of individual analysts for performing milk and food tests.
The addition of the required proficiency testing for water laboratories will have a fiscal impact on municipal water plants. These water labs will pay approximately $300 per year for proficiency samples and the cost of testing those samples. The proposed laboratory certification rules will have a negligible fiscal impact on private water labs and milk and food laboratories. It should not be necessary for any type of certified laboratory to retain additional professional services to comply with this rule.
Summary of Comments of Legislative Committees:
On June 16, 1999, the department transmitted the above rule for legislative committee review. The rule was assigned to the Senate Committee on Agriculture, Environmental Resources and Campaign Finance Reform on June 17, 1999, and the Assembly Committee on Public Health on July 8, 1999. No action was taken during the review period by either committee.
2.
Agriculture, Trade & Consumer Protection
(CR 99-18)
Chs. ATCP 10 and 11 - Johne's Disease.
Summary of Final Regulatory Flexibility Analysis:
This rule has no adverse effect on small business. By itself, this rule will simply make it easier for sellers to participate in the voluntary Johne's disease testing and disclosure program. This rule protects buyers to the same degree as the current rule. The department has proposed legislation to eliminate the “as is” disclaimer option under the “implied warranty” law. This legislative change would give herd owners far more incentive to participate in the voluntary Johne's disease testing and disclosure program.
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 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 animals are identified as reactors. (Reactors may be sold to slaughter under a department permit.)
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 sold directly to slaughter or as feeder cattle. No testing or disclosure is required. However, if a slaughter or feeder animal has been tested and is a reactor, it must be permanently marked.
Annual Herd Test
An annual herd test may be a “whole herd test”, a “random herd test” or a “split herd test:”
• A “whole herd test” must include every test eligible animal in the herd, and the samples must be collected on the same day or consecutive days.
• 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, whichever group is larger. The samples must be collected on the same day.
• A “split herd test” allows the owner to test groups of animals at different times during the year, provided that all test eligible animals are tested in a 12 month period, the department approves the testing plan before samples are collected, and the herd owner tests the herd according to the approved plan.
“Test eligible animals” include all cattle in a herd that are 36 months of age or more, and all bulls 24 months of age or more. All goats 18 months of age or more are test eligible animals.
The date of the first annual herd test under this rule establishes an “anniversary date” for each subsequent annual herd test. If the first annual herd test is a “split herd test,” the “anniversary date” is the date on which the last group of animals is tested. Each year's test must be conducted on the “anniversary date,” or within 2 months before or after the “anniversary date,” except that a “split herd test” must be completed prior to 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 herd classification over time):
• Johne's preventive management level A. This is the most desirable herd classification. The department will classify a herd as “Johne's preventive management level A” if an annual herd test reveals no Johne's reactors.
• 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 or split herd test are Johne's 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 or split herd test are Johne's 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:
* A random herd test reveals one or more Johne's reactors, unless the department classifies the herd as “Johne's preventive management level B” or “C” based on a follow-up whole herd test.
* A whole herd or split herd test reveals more than 15% Johne's 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.
A Johne's preventive management level A, B, C or D classification will also indicate the first year from which the herd has continuously held that classification.
Voluntary Participation
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 fails to 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 or as feeder animals.
A herd owner may elect to test (and cull) animals without having the test results used for herd classification purposes. However, 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
