Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 624, 12/31/2007

Rule-Making Notices

Notice of Hearings

Agriculture, Trade and Consumer Protection

[CR 07-107]
(Reprinted from 12/15/07 Wis. Adm. Register)

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed amendment to chapters ATCP 10, 12, and 17, Wis. Adm. Code, relating to animal health and disease control.

Hearing Information

Monday, January 7, 2008

6:00 p.m. to 7:00 p.m.

Fox Valley Technical College

1825 N. Bluemound Drive, Room C140

Appleton, WI 54912

Tuesday, January 8, 2008

6:00 p.m. to 7:00 p.m.

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive

1st Floor - Rm. 106 (Boardroom)

Madison, Wisconsin 53718

Thursday January 10, 2008

6:00 p.m. to 7:00 p.m.

Dept. of Natural Resources West Central Region Headquarters

1300 W. Clairemont Avenue – Room 158

Eau Claire, WI 54701

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by December 19, 2007, by writing to Melissa Mace, Division of Animal Health, 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.

Written Comments

DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until Friday, January 25 for additional written comments. Comments may be sent to the Division of Animal Health 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].

Copy of Rule

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Animal Health, 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

This rule modifies Wisconsin animal health and disease control rules. Among other things, this rule:

•   Establishes new rules related to viral hemorrhagic septicemia (VHS) in fish, and simplifies registration of fish farms. DATCP has adopted temporary emergency VHS rules, which this rule would make “permanent."

•   Modifies current rules related to farm-raised deer, including rules related to herd registration, disease control, imports, movement and condemnation. Changes are consistent with proposed federal rules.

•   Modifies current rules related to cattle, including rules related to voluntary Johne's disease testing and classification, tuberculosis import testing, and imports of cattle originating from Mexico.

•   Modifies current rules related to poultry imports and enrollment in the national poultry improvement program.

•   Modifies current rules related to animal markets, dealers and truckers.

•   Modifies current rules related to Wisconsin's livestock premises registration program. This rule makes it easier to register, and extends the current annual registration period to 3 years.

•   Clarifies current disease indemnity appraisal procedures.

•   Makes minor drafting changes to update, clarify and correct current rules.

Statutory Authority

Sections 93.07 (1) and (10), 95.18, 95.19 (3), 95.197 (2), 95.20, 95.22(2), 95.32 (5), 95.38 (3), 95.45 (4) (c) and (5), 95.51 (7), 95.55 (6), 95.57 (1), 95.60 (3), (4) (c) and (4s), 95.65 (2), 95.68 (8), 95.69 (8) and 95.71 (8), Stats.

Statutes interpreted

Sections 93.07 (10), 95.18, 95.19, 95.197, 95.20, 95.22, 95.23, 95.32, 95.36, 95.38, 95.45, 95.51, 95.55, 95.57, 95.60, 95.65, 95.68, 95.69 and 95.71, Stats.

Explanation of agency authority

DATCP has broad general authority to adopt rules interpreting statutes under its jurisdiction (see s. 93.07(1), Stats.). DATCP is specifically authorized to adopt rules to protect the health of animals in this state, and to prevent, control and eradicate communicable diseases among animals.

Rule contents

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) administers Wisconsin's animal health and disease control program. This rule modifies current DATCP rules under chs. ATCP 10 (animal diseases and movement), ATCP 12 (animal markets, dealers and truckers) and ATCP 17 (livestock premises registration).

Fish

Fish Farm Registration

This rule allows a fish farm operator to register 2 or more fish farms under a single annual registration certificate (under current rules, a separate registration certificate is required for each fish farm). A single registration certificate may cover both type 1 and type 2 fish farms. The registration certificate must identify each fish farm location, and must indicate whether that location is registered as a type 1 or type 2 fish farm. As under current rules, the operator must pay annual fees based on the number and types of fish farms registered (this rule does not change current fees).

This rule clarifies that fish may be moved between type 2 fish farms registered to the same operator, or from a type 2 to a type 1 fish farm registered by the same operator, without a fish health certificate. Under this rule, as under current rules, the fish farm operator must keep complete records of the fish movement.

VHS Test Reports

Under this rule, a veterinarian who tests fish in this state for viral hemorrhagic septicemia (VHS) must report the test result to DATCP, regardless of whether the test result is positive or negative.

VHS Testing Requirements

Current DATCP rules require health certificates for all of the following:

•   Fish and fish eggs (including bait) imported into the state.

•   Fish and fish eggs stocked into Wisconsin public waters.

•   Fish and fish eggs moved between Wisconsin fish farms.

Under current rules, import health certificates must include VHS testing if the import shipment includes salmonids (salmon, trout, etc.) or originates from a state or province where VHS is known to occur. VHS testing is not currently required for any of the following:

•   Fish or fish eggs stocked into Wisconsin public waters from Wisconsin sources.

•   Bait fish or fish eggs originating from Wisconsin sources.

•   Fish or fish eggs moved between Wisconsin fish farms.

•   Non-salmonids imported from states (such as Minnesota) where VHS has not yet been found.

This rule expands current VHS testing requirements. Under this rule, a fish health certificate and VHS testing are required for all of the following fish and fish eggs if they are of a known VHS-susceptible species identified by the United States department of agriculture (USDA) and were either (1) collected from a wild source in any state 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 in any state within the preceding 12 months:

•   Fish or fish eggs stocked into Wisconsin public waters.

•   Fish or fish eggs moved between Wisconsin fish farms.

•   Fish or fish eggs distributed by a bait dealer for use as bait. The bait fish testing requirement will initially apply to emerald shiners (a known VHS-susceptible species), but will not initially apply to other major bait species such as fathead minnows, white suckers and golden shiners (which are not yet known to be VHS-susceptible). However, it could eventually apply to other species if USDA finds that those species are also VHS-susceptible. A retail bait dealer is not required to conduct duplicate tests on fish previously tested by a wholesale bait dealer.

This rule also prohibits any person from selling bait fish of any kind if the seller has reason to know that the bait is affected with VHS or another reportable disease.

Operators Moving Fish Between Their Own Fish Farms

This rule clarifies that VHS and other routine disease testing requirements do not apply when operators (including DNR) are moving fish or fish eggs between their own registered fish farms. However, current DATCP rules continue to prohibit such movement if the operator knows or has reason to know that the fish or fish eggs are affected with a reportable disease such as VHS. DATCP may also issue quarantine and other disease control orders to individual fish farm operators, as necessary.

Registrant Responsibility

This rule clarifies that a person who registers a fish farm is responsible for ensuring that fish farm operations comply with DATCP rules. However, this rule does not relieve other persons of liability for rule violations that they commit.

Farm-Raised Deer

Chronic Wasting Disease Test Reports

Under this rule, a veterinarian who tests a farm-raised deer in this state for chronic wasting disease must report the test result to DATCP, regardless of whether the test result is positive or negative.

Herd Registration; General

Under current rules, no person may keep farm-raised deer at any location in this state unless DATCP has issued a current annual registration certificate authorizing that person to keep farm-raised deer at that location. An annual registration certificate currently expires on December 31 of each year. This rule changes the annual expiration date to March 15, beginning with the first registration year beginning after the effective date of this rule.

One Registered Herd Kept at 2 or More Locations

This rule clarifies that a person may keep farm-raised deer at 2 or more locations identified in a single herd registration certificate, subject to the following conditions:

•   All of the herd locations must be actively enrolled in Wisconsin's chronic wasting disease status program.

•   The registrant may move farm-raised deer between locations identified in the herd registration certificate without a certificate of veterinary inspection if all of the following apply:

•   Those farm-raised deer are identified with official individual identification.

•   The registrant keeps a detailed record of the movement.

•   All farm-raised deer covered by the registration certificate will be treated as members of a single herd, for purposes of disease control and movement.

Two or More Registered Herds Kept at One Location

Under this rule, separately-registered farm-raised deer herds may be kept at the same location (even if they are owned by different persons) subject to the following conditions:

•   If the herds are “medically separated," each herd is considered a separate herd for purposes of disease control, movement, and enrollment in Wisconsin's chronic wasting disease status program. Farm-raised deer moved between any of the medically separated herds must be accompanied by a certificate of veterinary inspection, and registrants must keep a detailed record of each movement.

•   If the herds are not medically separated:

•   All of the farm-raised deer covered by the herd registrations are collectively treated as a single herd for purposes of disease control and movement, regardless of location or ownership, and regardless of whether they are part of the same registered herd.

•   Farm-raised deer may be moved between any of the herd locations identified on any of the herd registration certificates, without a certificate of veterinary inspection, provided that they are identified with official individual identification. Registrants must keep detailed records of the movements.

•   All of the herds, including all locations covered by the herd registration certificates, must be actively enrolled in Wisconsin's chronic wasting disease status program.

•   Herds are “medically separated," for purposes of this rule, if all of the following apply:

•   They are separated by a double fence meeting Department of Natural Resources (DNR) standards or, in the case of farm-raised deer other than white-tailed deer, by a functionally equivalent barrier approved by DATCP.

•   Bio-security procedures effectively prevent disease transmission between the herds.

•   The department inspects each shared herd location, and finds that the herds are “medically separated." There is an inspection fee of $150 (no change from current rules).

Chronic Wasting Disease Tests

Under current rules, a farm-raised deer keeper must have a chronic wasting disease test performed on every farm-raised deer at least 16 months old that dies in captivity, or is killed or sent to slaughter (the test sample must be sent to an approved laboratory within 10 days after it is collected). Under this rule, testing is required for deer at least 8 months old that meet the same criteria. Under this rule, a test sample must be collected within 10 days after the animal dies, or is killed or slaughtered (or within 10 days after the death is first discovered). Under this rule as under the current rules, the test sample must be sent to an approved laboratory within 10 days after it is collected.

Condemnation of Farm-Raised Deer

This rule clarifies current rules related to DATCP condemnation of diseased or suspect farm-raised deer. Under this rule, a condemnation order may do all of the following:

•   Specify a reasonable deadline for destruction of the condemned animals.

•   Direct appropriate disease testing and disposition of the carcasses.

•   Require the herd owner or custodian to enter into a “premises plan" as a condition to the payment of state indemnities. The “premises plan" may require the herd owner or custodian to clean and disinfect the herd premises, limit future cervid movement to and from the premises, or comply with other requirements that are reasonably designed to prevent the spread of disease. A “premises plan" may include a restrictive covenant, such as a fence maintenance requirement, that is binding on subsequent property owners for the duration of the agreement.

Under current rules, the owner of condemned farm-raised deer may apply for state indemnity payments. Under this rule, an application for indemnity payments must include proof of compliance with DATCP's condemnation order.

Chronic Wasting Disease Herd Status Program; Annual Census

Under current rules, no person may move farm-raised deer from a herd in this state unless the herd is enrolled in Wisconsin's chronic wasting disease herd status program. Enrollees must, among other things, submit an annual herd census to DATCP. Among other things, an annual herd census must report the number, species and sex of animals that have left the herd since the last annual census, and how those animals left the herd. Under this rule, an annual herd census must also include:

•   A report of apparent escapes, including approximate escape dates and circumstances, and steps taken to prevent recurring escapes.

•   An explanation and accounting for overall changes in herd population since the last annual census.

•   Census verification by a Wisconsin certified veterinarian if required by the department.

White-tailed Deer Herd; Fence Certificate

Under current law, fences for farm-raised white-tailed deer herds must be approved by DNR, and must comply with DNR rules. Under this rule, a person applying for a DATCP registration certificate to keep white-tailed deer must include, with the application, a copy of a valid DNR fence certificate for each registered location.

Hunting Preserves

Under current law, a person operating a farm-raised deer hunting preserve must hold a hunting preserve registration certificate from DATCP (a certificate is valid for 10 years). Current rules spell out hunting preserve registration standards and application requirements. Under this rule, an application must also include all of the following:

•   An estimate of the farm-raised deer population on the hunting preserve premises, by species, age and sex.

•   The identification numbers of any farm-raised deer on the hunting preserve that bear identification numbers.

Under this rule, all non-natural additions to a hunting preserve must have 2 forms of official individual identification, one visible and one implanted.

Disease-Free Certification of Farm-Raised Deer

Under current rules, DATCP may certify a herd of farm-raised deer as brucellosis-free or tuberculosis-free, or both, based on herd test results provided by the herd owner. Participation is voluntary, but disease-free herd certification facilitates the sale and movement of farm-raised deer. Herd certification is generally governed by federal rules (uniform methods and rules) that DATCP has incorporated by reference in its rules.

Under current federal rules, tuberculosis-free herd certification is good for 3 years, while brucellosis-free herd certification is good for only 2 years. USDA proposes to harmonize the certification terms, but has not yet adopted the necessary rule changes. USDA has authorized DATCP to harmonize the terms by state rule.

This rule extends brucellosis-free herd certification from 2 years to 3 years (a herd owner may request a shorter term), 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.

This rule also clarifies that DATCP may transfer a herd certification to new herd owner, or grant equivalent certification status to a new herd created from an existing certified herd, if the herd meets certification standards and the owner applies for certification within 90 days.

Tuberculosis in Farm-Raised Deer

Under current rules, a farm-raised deer must be slaughtered within 15 days if it is found to be a tuberculosis reactor, except that DATCP may extend the slaughter deadline by up to 15 days. Under this rule, DATCP may extend the slaughter deadline by up to 30 days.

Importing Farm-Raised Deer

Farm-raised deer imported to this state must meet standards specified in current rules. Among other things, the imported animal must meet one of several alternative requirements related to tuberculosis status. This rule modifies current import standards, based on current federal standards for interstate movement. This rule eliminates current requirements for post-import testing.

Moving Farm-Raised Deer Within Wisconsin

Farm-raised deer moved between separately registered herds in this state must meet standards specified in current rules. Among other things, the farm-raised deer must meet one of several alternative requirements related to tuberculosis status. Under one alternative, a farm-raised deer may qualify for movement if it tests negative on 2 tuberculosis tests, where the second test is performed within 360 days prior to movement. Under this rule, the second test must be conducted within 90 days prior to movement.

Under this rule, a farm-raised deer may not be moved between separately registered herds in this state unless it has been enrolled in Wisconsin's chronic wasting disease status program for at least 5 years. If the source herd is located in a DNR wild deer chronic wasting disease eradication zone, it must have been enclosed by a DATCP-approved double fence for at least 5 years.

Cattle

Johne's Disease Testing and Herd Classification

DATCP currently administers a voluntary herd testing and classification program related to Johne's disease in cattle. Herd testing and classification is conducted according to federal standards adopted by the United States department of agriculture (USDA). This rule incorporates the latest version (2006) of the USDA standards.

Under current rules, Johne's disease test samples must be collected by an accredited veterinarian, by an individual working under direct supervision of an accredited veterinarian who submits the sample for testing, or by an authorized DATCP or USDA employee or agent. Under this rule, a milk sample for Johne's disease testing may also be collected by a Dairy Herd Improvement Association (DHIA) authorized technician.

Imported Cattle and Bison; TB Test Exemption

Current rules exempt imported bovine animals (cattle and bison) from the requirement of a pre-import tuberculosis test if the animals originate from a state that USDA has classified as “TB-free" if that state accepts Wisconsin animals without a TB test. Under this rule, the exemption does not apply if the state of origin has a confirmed TB-positive herd, until that herd is depopulated and all epidemiologically linked herds have tested negative for TB.

Cattle and Bison from Mexico

Under this rule, no person may import an “M-branded" bovine animal (cattle or bison) to this state, except directly to slaughter. “M-branded" animals are animals branded with the letter “M" to signify that they have been imported from Mexico.

Poultry

National Poultry Improvement Plan Enrollment

Under current rules, a poultry flock owner may enroll the flock in the national poultry improvement program (DATCP administers the program in this state). Enrollment facilitates the sale and movement of poultry. Under this rule, a flock may not be enrolled in the program unless the flock premises have been registered under Wisconsin's livestock premises registration program (the premises ID number must be included on the enrollment application).

Poultry Imports

Under current rules, poultry may not be imported to Wisconsin unless they are accompanied by a valid certificate of veterinary inspection that certifies all of the following:

•   They originate from flocks enrolled in the national poultry improvement plan.

•   They originate from flocks classified as “U.S. pullorum-typhoid clean" and, in the case of turkeys and turkey eggs, “Mycoplasma gallisepticum clean" under the national poultry improvement plan.

This rule changes current poultry import requirements. Under this rule, poultry may not be imported to Wisconsin unless they are accompanied by a valid certificate of veterinary inspection that certifies at least one of the following:

•   They originate from flocks enrolled in the national poultry improvement plan.

•   They originate from flocks classified as “U.S. pullorum-typhoid clean" and, in the case of turkeys and turkey eggs, “Mycoplasma gallisepticum clean" under the national poultry improvement plan or under an equivalent plan approved by DATCP.

•   All test eligible birds have tested negative for pullorum, fowl typhoid and, in the case of turkeys, Mycoplasma gallisepticum within 90 days prior to import. Tested birds must bear official individual identification, and there may be no change of ownership between the test sampling date and the import date.

Llamas and Alpacas

Under this rule, a llama or alpaca imported to Wisconsin must be accompanied by a certificate of veterinary inspection that includes the official individual identification of the llama or alpaca.

Animal Markets

General

This rule does all of the following:

•   Eliminates the current requirement for animal market operators to pass a test before being initially licensed by DATCP.

•   Requires animal market operators to transport and handle animals in a safe and humane manner.

•   Clarifies animal transport vehicle registration requirements.

•   Requires animal market operators to record the official individual identification of goats that bear official individual identification.

•   Requires animal market operators to record the livestock premises code, if any, of each premises from which the operator receives or to which the operator ships livestock.

Federally Approved Livestock Import Markets

Under current rules, certain livestock imported to a federally-approved livestock import market in this state are exempt from Wisconsin import requirements, provided that they meet those requirements before leaving the market. Under this rule, before the animals leave the market, the market operator must also disclose the animals' state of origin to the animal purchaser.

Animal Dealers

This rule does all of the following:

•   Eliminates the current requirement for animal dealers to pass a test before being initially licensed by DATCP.

•   Requires animal dealers to transport and handle animals in a safe and humane manner.

•   Clarifies animal transport vehicle registration requirements.

•   Requires animal dealers to record the official individual identification of goats.

•   Requires animal dealers to record the livestock premises code, if any, of each premises from which the dealer receives or to which the dealer ships livestock.

Animal Truckers

This rule does all of the following:

•   Eliminates the current requirement for animal truckers to pass a test before being initially licensed by DATCP.

•   Eliminates the current license exemption for animal truckers that haul animals for other persons fewer than 6 times per license year.

•   Requires animal truckers to transport and handle animals in a safe and humane manner.

•   Clarifies animal transport vehicle registration requirements.

•   Requires animal truckers to record the livestock premises code, if any, of each premises from which the trucker receives or to which the trucker ships livestock.

Slaughter Establishments

Under current rules, no person may remove livestock from a slaughter establishment after the animal has been weighed and purchased by the slaughter establishment. Under this rule, no person may remove livestock after they have been off-loaded at the slaughter establishment.

Disease Indemnities

Under current law, DATCP may condemn and order the destruction of animals to prevent the spread of serious diseases. In some cases, the owner of the diseased animals may be eligible for state indemnity payments. Under this rule, if the owner of a diseased animal is eligible for state indemnities, and if the animal is of a type not frequently sold at public auction, DATCP must appoint a knowledgeable independent appraiser to determine the value of the animal. The appraiser must determine appraised value based on the animal's size, species, sex, and grade or quality, and by relevant information related to prevailing market prices for animals of that size, species, sex, and grade or quality.

Prohibited Practices

This rule prohibits any person from selling, moving or disposing of an animal before the result of a disease test of that animal is known, if that disease test is required by law prior to the sale, movement or disposition.

Livestock Premises Registration

Registration Renewal Period

Under current law, a person keeping livestock in this state must register each location where those livestock are kept. “Livestock" includes bovine animals, equine animals, goats, poultry, sheep, swine other than wild hogs, farm-raised deer, captive game birds, camelids, ratites and fish. Under current DATCP rules, a person must renew a livestock premises registration every year. This rule extends the current renewal period. Under this rule, a person will only be required to renew once every 3 years.

Who May Register

Under current rules, if person A feeds and cares for livestock owned by person B, on premises owned by person C, any of those persons may register the premises (the others need not). However, if the premises are part of an operation (such a dairy farm) that DATCP licenses under other applicable law, current rules provide that only the license holder may register the premises. This rule eliminates that restriction, so that any eligible person (including, but not limited to, the license holder) may register the premises. This rule retains a current rule provision which allows an applicant for an initial license (such as an initial dairy farm license) to register the livestock premises as part of that initial license application.

DATCP May Register Premises if Operator Does Not

This rule authorizes DATCP to register livestock premises, or renew a premises registration, on behalf of an operator that fails to do so. For example, DATCP could register livestock premises on behalf of operators who may have religious objections to registering themselves. Before DATCP registers any premises on behalf of any person, DATCP must notify that person of the person's duty to register and of DATCP's intent to register on that person's behalf. Registration by DATCP does not relieve the person of any penalties or liability that may apply as a result of the person's failure to register the livestock premises.

Other Changes

This rule makes a number of other minor drafting changes designed to update, clarify and correct current rules.

Comparison with federal regulations

DATCP administers animal disease control programs in cooperation with USDA. USDA has well-established control programs for historically important diseases such as tuberculosis and brucellosis. Federal rules for these programs spell out standards for disease testing, disease control, international and interstate movement of animals, certifying the disease status of states, and certifying the disease status of individual herds.

USDA operates national veterinary diagnostic laboratories, and coordinates multi-state responses to major disease epidemics. USDA exercises disease control authority, including quarantine and condemnation authority, and provides funding for indemnity payments to certain owners of condemned animals. USDA operates state and regional offices, and coordinates field operations with states.

USDA has less well-developed programs for new or localized diseases, or emerging animal-based industries. States often take a lead role in developing programs to address new animal health issues and disease threats (farm-raised deer and fish diseases, for example), particularly if those issues or threats have a more local or regional focus. Wisconsin's program related to fish and farm-raised deer are perhaps the leading programs in the nation, and have provided models for proposed federal programs.

USDA may provide grant funding, regulatory incentives, or other assistance in support of state programs and regulation. For example, USDA provides funding for voluntary Johne's disease testing and herd management, based on federal program standards.

States have independent authority to regulate animal health and movement, including imports from other states. However, states strive for reasonable consistency, based on standards spelled out in federal regulations. Where well-established federal standards and procedures exist, state disease control programs typically incorporate those federal standards. However, states may independently address new and emerging disease issues, especially if those issues have a state or regional focus and are not a priority for USDA.

Comparison with rules in adjacent states

Surrounding state animal health programs are broadly comparable to those in Wisconsin, but vary in a variety of ways. Differences in disease regulations and control programs may reflect differences in animal populations, animal-based industries, and disease threats in the different states. Programs for historically important diseases, such as tuberculosis and brucellosis, tend to be fairly similar between states and are based on well-established federal standards. Programs for newer forms of agriculture, such as farm-raised deer and aquaculture, tend to be more variable.

Aquaculture

All of the surrounding states regulate aquaculture, to some degree:

•   Minnesota requires fish import permits, and licenses fish farms and fish dealers. Health certification is required for fish imports, but not for fish farms. Bait imports are prohibited.

•   Iowa requires fish import permits, and licenses fish farms. Health certification is required for fish imports, but not for fish farms.

•   Illinois licenses fish farms and fish dealers. An import permit and health certification is required for certain fish imports (salmonids). There is limited regulation of fish transport vehicles.

•   Michigan licenses fish farms. Health certification is required for fish imports.

Johne's Disease

All of the surrounding states (Illinois, Michigan, Iowa and Minnesota) have adopted a voluntary Johne's disease testing and herd management program, based on the federal program. Wisconsin has a similar program, which it is updating under this rule.

Fiscal Impact

This rule will not have a significant state or local fiscal impact, except that the fish health provisions of this rule will have the following impact on DNR and DATCP.

Impact on DNR

This 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.

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).

Impact on DATCP

DATCP will incur added costs to administer and enforce the fish health testing requirements under this rule. DATCP will need at least 2.0 FTE 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.

Business Impact

Aquaculture Industry

This rule creates new regulations to control viral hemorrhagic septicemia (VHS) in fish, and simplifies registration of fish farms. This rule will affect fish farm operators and bait dealers. This rule will also affect the Wisconsin Department of Natural Resources (DNR). The effect on DNR is described in the fiscal estimate for this rule.

This rule will benefit the aquaculture industry by helping to control the spread of VHS, a very serious disease of fish. This rule will also benefit fish farm operators, by simplifying current fish farm registration requirements (operators will be able to register multiple fish farms on a single registration form). However, this rule may add costs or limit operations for some fish farmers and bait dealers, as described below.

Fish Farm Operators

DATCP estimates that this rule will affect 30-40 private fish farms, not counting DNR “cooperator" fish farms registered by DNR. Many of the affected fish farms are “small businesses," and many of them will be substantially affected by this rule. VHS testing requirements may force some fish farm operators to curtail all or part of their operations. However, some fish farms already conduct VHS tests in order to meet federal requirements for interstate movement of fish.

Fish farm operators may incur added testing requirements under this rule if they keep VHS-susceptible fish or fish eggs that were either (1) collected from any 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 any wild source within the preceding 12 months. Operators must test those VHS-susceptible fish or fish eggs before they distribute them for bait, for stocking to Wisconsin public waters, or for delivery to other fish farms (other than those registered by the same operator).

A veterinarian or other qualified fish health inspector must certify that the fish or fish eggs are VHS-free, based on tests using approved methods. VHS tests must be conducted on a statistically representative 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 fish 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 purposes for which the fish are kept and distributed.

DATCP estimates that approximately 30-40 private fish farm operators will need to conduct VHS tests, and that they will conduct those tests on a combined total of approximately 40 lots of fish per year. Assuming an average cost of $500 per test per lot, the combined total cost to all affected private fish farm operators will be approximately $20,000 per year.

However, some of those affected fish farmers are already performing VHS tests in order to meet federal requirements for shipping fish in interstate commerce, so the net impact of this rule may be less than $20,000. Fish farm 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).

Bait Dealers

Wisconsin bait dealers are currently licensed by DNR. This rule will affect licensed bait dealers in 2 ways:

•   If bait dealers buy VHS-susceptible bait species that originate from wild sources, their purchase costs may reflect the seller's added cost of VHS testing under this rule.

•   If bait dealers collect VHS-susceptible bait species from wild sources, they will need to conduct VHS tests before reselling or distributing the bait. They will also need to withhold the bait from distribution for at least 4 weeks pending the completion of VHS tests. That will add costs, and may not be practically feasible for affected bait dealers.

This rule applies only to bait species that are known to be susceptible to VHS. Of the major bait species in Wisconsin (fathead minnow, white sucker, golden shiner and emerald shiner), only one species (emerald shiner) is currently known to be susceptible to VHS. Emerald shiners are obtained exclusively by wild harvesting, while other major bait species can be hatched and raised on farms. At this time, DATCP estimates that emerald shiners represent less than 10% of the overall bait market in Wisconsin (the market for wild-harvested emerald shiners has already diminished as a result of federal VHS testing requirements for emerald shiners moved in interstate commerce).

DATCP estimates that approximately 25 Wisconsin bait dealers are currently harvesting emerald shiners from the wild. DATCP estimates that each of those bait dealers would need to test an average of 6 lots of wild-harvested emerald shiners each year, before distributing the emerald shiners for sale. Assuming an average cost of $500 per test lot, the average annual cost for an individual bait dealer would be about $3,000 per year, and the combined total cost to all 25 of those bait dealers would be about $75,000 per year. That figure does not include added costs to hold the emerald shiners for 4 weeks while testing is completed. It is extremely difficult to hold emerald shiners for extended periods, so it may not even be possible for most bait dealers to hold them for the required 4 weeks.

The difficulty of holding emerald shiners for 4 weeks, combined with the added cost of testing emerald shiners, may drive many bait dealers out of the business of harvesting wild emerald shiners for sale as bait. However, those bait dealers may still be able to harvest and sell other types of bait that are not affected by this rule.

Bait dealers that are not currently harvesting emerald shiners will not be substantially affected by this rule unless USDA finds that additional bait species are susceptible to VHS. If USDA finds that other major bait species are susceptible to VHS, this rule could have a more dramatic impact on bait dealers. The impact will depend on the species that are affected.

Farm-Raised Deer Keepers

This rule changes current rules related to farm-raised deer. This rule makes all of the following changes:

•   Requires veterinarians who perform chronic wasting disease (CWD) tests to report test results to DATCP.

•   Changes the annual expiration date for farm-raised deer herd registrations, from December 31 to March 31.

•   Clarifies that a person may keep farm-raised deer at 2 or more locations identified in a single herd registration certificate, subject to specified conditions.

•   Clarifies that separately-registered farm-raised deer herds may be kept at the same location (even if they are owned by different persons), subject to specified conditions.

•   Modifies current CWD testing requirements. Under current rules, a test must be performed on every farm-raised deer at least 16 months old that dies in captivity, or is killed or sent to slaughter (the test sample must be sent to an approved laboratory within 10 days after it is collected). Under this rule, testing is required for deer at least 8 months old that meet the same criteria. Under this rule, a test sample must be collected within 10 days after the animal dies, or is killed or slaughtered (or within 10 days after the death is first discovered). Under this rule as under the current rules, the test sample must be sent to an approved laboratory within 10 days after it is collected.

•   Clarifies current rules related to DATCP condemnation of diseased or suspect farm-raised deer. Under this rule, a condemnation order may specify a reasonable compliance deadline, may direct appropriate testing and disposition of carcasses, and may require the herd owner or custodian to enter into a “premises plan" as a condition to the payment of state indemnities.

•   Clarifies annual herd census requirements under Wisconsin's chronic wasting disease herd status program. Under this rule, an annual herd census must report apparent escapes, and must explain and account for changes in herd population since the last census.

•   Clarifies that a person applying to register a herd of white-tailed deer with DATCP must include, with the registration application, a copy of a valid DNR fence certificate (currently required by law) for each registered location.

•   Clarifies that a person applying for a 10-year hunting preserve certificate from DATCP must include, in the application, an estimate of the farm-raised deer population on the hunting preserve premises (by species, age and sex). The application must also include the identification numbers of any farm-raised deer on the hunting preserve that bear identification numbers. Under this rule, all non-natural additions to a hunting preserve must have 2 forms of official individual identification, one visible and one implanted.

•   Extends the term of a brucellosis-free herd certification, from 2 years to 3 years, so that it is consistent with the term of a tuberculosis-free herd certification. That will allow herd owners to conduct simultaneous tests for both diseases.

•   Allows DATCP to extend the 15-day slaughter deadline for tuberculosis reactors by up to 30 days (current rules allow only a 15-day extension).

•   Modifies current tuberculosis regulations for imports of farm-raised deer, to make them consistent with federal standards for interstate movement. This rule also eliminates current requirements for post-import testing.

•   Clarifies current rules related to movement of farm-raised deer between separately registered herds in this state.

Most of the changes in this rule are designed to clarify current rules, or to make current rules consistent with federal rules. The rule changes will have minimal impact on most farm-raised deer keepers, and will reduce costs and facilitate deer farm operations in many cases. Clear and effective rules will help prevent and control chronic wasting disease and other diseases, for the benefit of the entire farm-raised deer industry.

This rule will require farm-raised deer keepers to perform chronic wasting disease tests on farm-raised deer that die between the ages of 8 months and 16 months (current rules only require testing of animals that die at age 16 months or older). The reduction in test age may require some farm-raised deer keepers to test a slightly larger number of farm-raised deer. The United States Department of Agriculture (USDA) currently pays laboratory testing costs, but farm-raised deer keepers must pay at least part of the cost to have test samples collected by a veterinarian. The sample collection cost ranges from $15/head to $140/head depending on the availability of a veterinarian. In recent years, USDA has paid the first $50 of this cost (future funding is uncertain).

This rule requires additional (implanted) ID tags for farm-raised deer entering hunting preserves, to facilitate disease traceback. The cost of the additional tag is estimated at less than $5 per farm-raised deer. In recent years, USDA has paid for implanted ID tags (future funding is uncertain).

Cattle and Goat Producers

Under current rules, Johne's disease test samples must normally be collected by accredited veterinarians. This rule allows Dairy Herd Improvement Technicians to collect milk samples that are used as Johne's disease test samples. That will make it easier, and less costly, for dairy farmers to participate in the Johne's disease herd testing and management program.

Current rules exempt imported bovine animals (cattle and bison) from the requirement of a pre-import tuberculosis test if the animals originate from a state that USDA has classified as “TB-free" if that state accepts Wisconsin animals without a TB test. Under this rule, the exemption does not apply if the state of origin has a confirmed TB-positive herd, until that herd is depopulated and all epidemiologically linked herds have tested negative for TB. This rule also prohibits imports of cattle originating from Mexico, except directly to slaughter. This rule will help prevent imports of diseased cattle, and provide important protection for Wisconsin's livestock industry. It will not have significant adverse effects on the livestock industry.

Poultry Producers

Under current rules, a poultry flock owner may voluntarily enroll in the National Poultry Improvement Plan (enrollment facilitates the sale and movement of poultry). Under this rule, a flock owner may not enroll unless the owner has registered flock premises under Wisconsin's livestock premises identification program. This will not have a significant impact on flock owners, because registration is already required by law.

Current rules regulate poultry imports to Wisconsin. This rule modifies poultry import standards, to provide more flexible options for poultry importers. This rule will have no adverse impact on poultry importers.

Animal Markets, Dealers and Truckers

This rule does all of the following:

•   Eliminates the current requirement for animal market operators, animal dealers and animal truckers to pass a test before being initially licensed by DATCP.

•   Requires animal market operators, animal dealers and animal truckers to transport and handle animals in a safe and humane manner.

•   Clarifies animal transport vehicle registration requirements.

•   Requires animal market operators, animal dealers and animal truckers to record the official individual identification of goats that bear official individual identification.

•   Requires animal market operators, animal dealers and animal truckers to record the livestock premises code, if any, of each premises from which the operator receives or to which the operator ships livestock.

•   Requires operators of federally-approved livestock import markets to disclose, to livestock recipients, the state of origin of livestock leaving the import market.

This rule will simplify licensing of animal market operators, dealers and truckers, by eliminating current testing requirements. This rule will require some animal market operators, dealers and truckers to make minor changes in recordkeeping and operating procedures. Recordkeeping changes will improve disease control and traceback capability, for the benefit of the entire livestock industry. This rule will not have any significant adverse effect on animal market operators, dealers or truckers.

Persons Keeping Livestock; Premises Registration

Under current law, a person who keeps livestock at a location in this state is required to register that location with DATCP. Under current rules, the person must renew the registration annually. If the person holds another license from the department, the person must register as part of the license application process.

This rule extends the renewal period from one year to 3 years. Under this rule, a license holder may register as part of the license application process but is not required to do so (the person may register separately). Under this rule, DATCP may register known livestock premises if the livestock operator fails to do so (because the operator has religious objections, for example). These changes will make it easier and more convenient for livestock operators to comply with premises registration requirements. This rule will have no adverse impact on the livestock industry.

Slaughter Establishments

This rule clarifies the current prohibition against removing live animals from slaughter establishments. This rule will not have any adverse effect on slaughter establishments.

Disease Indemnities

This rule clarifies the procedures that DATCP will use to determine the appraised value of animals condemned for disease control purposes, in order to determine the amount of state indemnity payments. This rule will not have any significant adverse effect on livestock operators, and will clarify indemnity procedures.

Small Business Analysis

Overall, this rule improves disease control and prevention for the benefit of the entire livestock and aquaculture industry. In many cases, this rule will actually improve flexibility and reduce costs for individual businesses, including small businesses. Overall, this rule has few adverse impacts on small business.

This rule may have some adverse effects on some small businesses (especially bait dealers that harvest emerald shiners from wild sources for sale as bait). If USDA finds that additional fish or bait fish species are susceptible to VHS, this rule may have a more dramatic impact on fish farm operators or bait dealers, or both. Many of the affected entities will be small businesses.

This rule is needed to protect the health of Wisconsin livestock industries, including the aquaculture and farm-raised deer industries. It is also needed to protect the health of wild animals, including fish. Effective disease control is important for all the people of the state, and for the affected livestock industries.

Although this rule may have some adverse effects on some small livestock businesses, those effects are generally minimal and are outweighed by the need to prevent and control the spread of serious diseases that could destroy entire industries. DATCP has not exempted small businesses, because the risk of disease spread is unrelated to business size.

Overall, this rule will benefit Wisconsin livestock industries by improving control of serious diseases. This rule will also increase flexibility and reduce costs for many individual businesses. This rule may have some adverse effects on some individual businesses, those effects are generally limited and are outweighed by the need to prevent and control the spread of serious diseases that could destroy entire industries.

Notice of Hearing

Agriculture, Trade and Consumer Protection

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on an emergency rule amending chapter ATCP 10, Wis. Adm. Code, relating to diseases of fish and farm raised deer.

Submission of Written Comments

DATCP will hold one public hearing at the time and place shown below. DATCP invites the public to attend the hearing and comment on the emergency rule. Following the public hearing, the hearing record will remain open until Thursday, January 25 for additional written comments. Comments may be sent to the Division of Animal Health 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].

Copy of Rule

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Animal Health, 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

Hearing Information

Monday, January 14, 2008

9:00 a.m. to 10:00 a.m.

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive

First Floor – Room 106 (Boardroom)

Madison, Wisconsin 53718

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by December 19, 2007, by writing to Melissa Mace, Division of Animal Health, 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.

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

This emergency rule modifies current health certification and disease testing requirements for fish and farm-raised deer. This emergency rule does all of the following:

•   Adds new viral hemorrhagic septicemia (VHS) testing requirements for all of the following fish and fish eggs if they are of a known 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 or eggs of any species collected from a wild source within the preceding 12 months:

•   Fish stocked into Wisconsin public waters.

•   Fish moved between Wisconsin fish farms.

•   Fish distributed by a bait dealer for use as bait. This rule also prohibits any person from selling bait fish if the seller has reason to know that the bait fish are affected with VHS or another reportable disease.

•   Clarifies that VHS and other routine fish disease testing requirements do not apply when operators, including the Wisconsin Department of Natural Resources (DNR), are moving fish or fish eggs between Wisconsin fish farms registered by the same operator. Current rules will continue to prohibit an operator from moving fish between the operator's registered fish farms if the operator has reason to know that the fish are affected with VHS or another reportable disease.

•   Extends brucellosis-free certification of farm-raised deer herds, from 2 years to 3 years, consistent with tuberculosis-free herd certification. That will allow participating herd owners to conduct simultaneous tests for both diseases.

Statutory authority

Sections 93.07 (1) and (10), 95.55 (6), 95.60 (2) (c), (3), (4) (c) and (4s), Stats.

Statutes interpreted

Sections 93.07 (10), 95.55 and 95.60, Stats.

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) has broad general authority, under s. 93.07(1), Stats., to adopt rules interpreting statutes under its jurisdiction. DATCP also has broad authority under s. 93.07(10), Stats., to adopt rules and issue orders to protect the health of animals, and to prevent, control and eradicate communicable diseases among animals. DATCP has specific authority, under ss. 95.55 and 95.60, Stats., to regulate farm-raised deer and fish.

Animal Health Programs: Background

DATCP administers Wisconsin's animal health and disease control programs, including programs to control diseases among fish and farm-raised deer. DATCP regulates fish farms, including DNR-operated fish farms, and regulates the import, movement and disease testing of fish. DATCP also regulates farm-raised deer herds and the import, movement and disease testing of farm-raised deer.

Disease Testing of Fish

Viral Hemorrhagic Septicemia

VHS is a serious disease of fish. VHS was first reported in Wisconsin on May 11, 2007, after the Wisconsin Veterinary Diagnostic Laboratory confirmed positive samples from freshwater drum (sheepshead) in Little Lake Butte des Mortes (part of the Lake Winnebago system). VHS was subsequently found in Lake Winnebago, and in Lake Michigan near Green Bay and Algoma. The source of VHS in these wild water bodies is not known. VHS has not yet been reported in any Wisconsin fish farms.

Current DATCP rules require health certificates for (1) fish and fish eggs (including bait) imported into the state, (2) fish and fish eggs stocked into Wisconsin public waters, and (3) fish and fish eggs moved between Wisconsin fish farms. Import health certificates must include VHS testing if the import shipment includes salmonids (salmon, trout, etc.) or originates from a state or province where VHS is known to occur. VHS testing is not currently required for any of the following:

•   Fish or fish eggs stocked into Wisconsin public waters from Wisconsin sources.

•   Bait fish or fish eggs originating from Wisconsin sources.

•   Fish or fish eggs moved between Wisconsin fish farms.

•   Non-salmonids imported from states (such as Minnesota) where VHS has not yet been found.

Because VHS has now been found in Wisconsin public waters, it is necessary to expand current VHS testing requirements. Because of the urgent need to minimize the spread of VHS in this state, it is necessary to add VHS testing requirements by emergency rule, pending the adoption of a “permanent" rule.

This emergency rule expands current VHS testing requirements. Under this emergency rule, a fish health certificate and VHS testing are required for all of the following fish and fish eggs if they are of a known VHS-susceptible species identified by the United States department of agriculture (USDA) and were either (1) collected from a wild source in any state 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 in any state within the preceding 12 months:

•   Fish or fish eggs stocked into Wisconsin public waters.

•   Fish or fish eggs moved between Wisconsin fish farms.

•   Fish or fish eggs distributed by a bait dealer for use as bait. The bait fish testing requirement will initially apply emerald shiners (a known VHS-susceptible species), but will not initially apply to other major bait species such as fathead minnows, white suckers and golden shiners (which are not yet known to be VHS-susceptible). However, it could eventually apply to other species if USDA finds that those species are also VHS-susceptible. A retail bait dealer is not required to conduct duplicate tests on fish previously tested by a wholesale bait dealer.

This rule also prohibits any person from selling bait fish of any kind if the seller has reason to know that the bait is affected with VHS or another reportable disease.

Operators Moving Fish Between Their Own Fish Farms

This emergency rule clarifies that VHS and other routine disease testing requirements do not apply when operators (including DNR) are moving fish or fish eggs between their own registered fish farms. However, current DATCP rules continue to prohibit such movement if the operator knows or has reason to know that the fish or fish eggs are affected with a reportable disease such as VHS. DATCP may also issue quarantine and other disease control orders to individual fish farm operators, as necessary.

Disease-Free Certification of Farm-Raised Deer

Under current rules, DATCP may certify a herd of farm-raised deer as brucellosis-free or tuberculosis-free, or both, based on herd test results provided by the herd owner. Participation is voluntary, but disease-free herd certification facilitates the sale and movement of farm-raised deer. Herd certification is generally governed by federal rules (uniform methods and rules) that DATCP has incorporated by reference in its rules.

Under current federal rules, tuberculosis-free herd certification is good for 3 years, while brucellosis-free herd certification is good for only 2 years. USDA proposes to harmonize the certification terms, but has not yet adopted the necessary rule changes. USDA has authorized DATCP to harmonize the terms by state rule.

This emergency rule extends brucellosis-free herd certification from 2 years to 3 years (a herd owner may request a shorter term), 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. It is necessary to adopt this change by emergency rule, so that certain herd owners can avoid unnecessary testing this year.

Comparison with federal regulations

DATCP administers animal disease control programs in cooperation with USDA. USDA has issued federal orders in response to the discovery of VHS in the United States and Canada. The orders limit interstate and international shipments of VHS-susceptible fish from states and provinces that border the Great Lakes, and require negative VHS testing to permit movement. This rule supplements current federal rules by establishing testing requirements for intrastate movement and stocking of wild source fish and fish eggs (including bait species) in Wisconsin.

Comparison with rules of adjacent states

Michigan and Minnesota require VHS testing on salmonids stocked into state waters. On June 7, 2007, Michigan also announced a one-year moratorium on state hatchery production of walleye, northern pike and muskellunge using eggs collected from wild sources in Michigan during 2007. Illinois and Iowa have no VHS testing requirements for intrastate movement or stocking of fish.

Fiscal Impact

Disease Testing of Fish

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.

Under current rules, a veterinarian or other qualified fish health inspector must issue a fish health certificate for all fish or fish eggs stocked into Wisconsin public waters. The inspector must issue the health certificate on a form prescribed by DATCP. Under this 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).

Effect on DATCP

DATCP will incur added costs to administer and enforce the fish health testing requirements under this emergency rule. DATCP will need at least 2.0 FTE 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.

Effect on UW and Local Governments

This 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.

Disease-Free Certification of Farm-Raised Dear

This emergency rule extends brucellosis-free certification of farm-raised deer herds, from 2 years to 3 years, consistent with tuberculosis-free herd certification. The change will allow participating herd owners to conduct simultaneous tests for both diseases. The change will have no fiscal impact on DATCP, on other agencies of state government, or on local government.

Business Impact

Disease Testing of Fish

Effect on Private Fish Farm Operators

DATCP estimates that this rule will affect 30-40 private fish farms, not counting DNR “cooperator" fish farms registered by DNR (see above). Many of the affected fish farms are “small businesses," and many of them will be substantially affected by this rule. VHS testing requirements may force some fish farm operators to curtail all or part of their operations. However, some fish farms already conduct VHS tests in order to meet federal requirements for interstate movement of fish.

Fish farm operators may incur added testing requirements under this rule if they keep VHS-susceptible fish or fish eggs that were either (1) collected from any 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 any wild source within the preceding 12 months. Operators must test those VHS-susceptible fish or fish eggs before they distribute them for bait, for stocking to Wisconsin public waters, or for delivery to other fish farms (other than those registered by the same operator).

A veterinarian or other qualified fish health inspector must certify that the fish or fish eggs are VHS-free, based on tests using approved methods (the American Fisheries Society test or the World Organization for Animal Health test) that DATCP has identified on the health certificate form.

VHS tests must be conducted on a statistically representative 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 fish 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 purposes for which the fish are kept and distributed.

DATCP estimates that approximately 30-40 private fish farm operators will need to conduct VHS tests, and that they will conduct those tests on a combined total of approximately 40 lots of fish per year. Assuming an average cost of $500 per test per lot, the combined total cost to all affected private fish farm operators will be approximately $20,000 per year. However, some of those affected fish farmers are already performing VHS tests in order to meet federal requirements for shipping fish in interstate commerce, so the net impact of this rule may be less than $20,000. Fish farm 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).

Effect on Bait Dealers

Wisconsin bait dealers are licensed by DNR. This rule will affect licensed bait dealers in 2 ways:

•   If bait dealers buy VHS-susceptible bait species that originate from wild sources, their purchase costs may reflect the seller's added cost of VHS testing under this rule.

•   If bait dealers collect VHS-susceptible bait species from wild sources, they will need to conduct VHS tests before reselling or distributing the bait. They will also need to withhold the bait from distribution for at least 4 weeks pending the completion of VHS tests. That will add costs, and may not be practically feasible for affected bait dealers.

This rule applies only to bait species that are known to be susceptible to VHS. Of the major bait species in Wisconsin (fathead minnow, white sucker, golden shiner and emerald shiner), only one species (emerald shiner) is currently known to be susceptible to VHS. Emerald shiners are obtained exclusively by wild harvesting, while other major bait species can be hatched and raised on farms. At this time, DATCP estimates that emerald shiners represent less than 10% of the overall bait market in Wisconsin (the market for wild-harvested emerald shiners has already diminished as a result of federal VHS testing requirements for emerald shiners moved in interstate commerce).

DATCP estimates that approximately 25 Wisconsin bait dealers are currently harvesting emerald shiners from the wild. DATCP estimates that each of those bait dealers would need to test an average of 6 lots of wild-harvested emerald shiners each year, before distributing the emerald shiners for sale. Assuming an average cost of $500 per test lot, the average annual cost for an individual bait dealer would be about $3,000 per year, and the combined total cost to all 25 of those bait dealers would be about $75,000 per year. That figure does not include added costs to hold the emerald shiners for 4 weeks while testing is completed. It is extremely difficult to hold emerald shiners for extended periods, so it may not even be possible for most bait dealers to hold them for the required 4 weeks.

The difficulty of holding emerald shiners for 4 weeks, combined with the added cost of testing emerald shiners, may drive many bait dealers out of the business of harvesting wild emerald shiners for sale as bait. However, those bait dealers may still be able to harvest and sell other types of bait that are not affected by this rule.

Bait dealers that are not currently harvesting emerald shiners will not be substantially affected by this rule unless USDA finds that additional bait species are susceptible to VHS. If USDA finds that other major bait species are susceptible to VHS, this rule could have a more dramatic impact on bait dealers. The impact will depend on the species that are affected.

Accommodation for Small Business

This rule will have a limited effect on most private fish farms and bait dealers. But in some cases (especially in the case of bait dealers that harvest emerald shiners from wild sources for sale as bait), this rule may impose substantial added costs. If USDA finds that additional fish or bait fish species are susceptible to VHS, this rule may have a more dramatic impact on fish farm operators or bait dealers, or both. Many of the affected entities are small businesses.

This emergency rule is needed to protect the health of wild and farm-raised fish populations in this state. Effective disease control is important for the entire aquaculture industry in this state. Although this rule may increase costs for some fish farm operators and bait dealers, the costs are currently outweighed by the need to prevent and control the spread of disease. DATCP has not exempted small businesses, or adopted more lenient VHS testing requirements for small business, because the risk of disease spread is unrelated to business size.

Disease-Free Certification of Farm-Raised Deer

This rule will have no negative effects on farm-raised deer keepers, and will reduce testing costs for some farm-raised deer keepers. Actual cost savings will depend on herd size and current test schedules. By facilitating simultaneous testing for brucellosis and tuberculosis, this rule will also avoid some stress on tested deer.

Notice of Hearings

Natural Resources

(Environmental Protection-General,
Chs. NR 100—)

[CR 07-111]

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11(2), 281.15, 283.13 and 283.17, Stats., interpreting ss. 281.15, 283.13 and 283.17, Stats., the Department of Natural Resources will hold a public hearing on the repeal of ch. NR 209, revisions to ch. NR 102 and the creation of subchs. V and VI to ch. NR 106, Wis. Adm. Code, relating to thermal standards for Wisconsin surface waters. The proposed rule will establish water quality standards for temperature (in ch. NR 102) and procedures to calculate water quality-based effluent limitations (in ch. NR 106) to regulate the discharge of heated wastewater to prevent adverse impacts to fish and other aquatic life.

Two new subchapters will be created in ch. NR 106: subch. V entitled Effluent Limitations for Temperature and subch. VI entitled Alternative Effluent Limitations for Temperature. Subchapter V specifies data requirements, variance procedures, methods for determining the necessity for and calculation of water quality-based effluent limitations, application of and compliance with the limitations in WPDES permits, and other related limitation and permitting issues. As a primary means of assuring the limitations are water quality-based, the proposed rule takes into account the ambient temperature and flow of a receiving water in the calculation of effluent limitations. The effluent limitation calculation incorporates a mass balance equation, making it equivalent to other codified limit calculation procedures. The mass balance approach enables the determination of the amount of heat that a receiving water can assimilate without adversely affecting fish and aquatic life. Supplemental limits, including those of 120°F to prevent incidental injury (scalding) to humans and of 95°F to protect wetlands, ephemeral streams, and other limited aquatic life waterbodies, are also proposed. Additionally a “cap limit" is to be applied simultaneously with the calculated limit to prevent excessive acute mixing zones.

Subchapter VI specifies procedures to determining alternative effluent limitations that may be established for point source discharges with limitations calculated under subch. V that are demonstrated to be more stringent than necessary to assure the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on the body of water into which the discharge is made. The subchapter includes application, compliance schedule and public notice procedures, among others. Subchapter VI replaces ch. NR 209 which is proposed to be repealed.

NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:

January 15, 2008   Room 158
Tuesday at 1:00 p.m.   DNR Region Hdqrs.
    1300 W. Clairemont Ave.
    Eau Claire

January 17, 2008   Room 151
Thursday at 1:00 p.m.   Dreyfus State Office Building
    141 NW Barstow St.
    Waukesha

January 25, 2008   Room G09
Friday at 1:00 p.m.   GEF #2 State Office Bldg.
    101 S. Webster St.
    Madison

January 28, 2008   Lake Michigan Room
Monday at 1:00 p.m.   DNR Northeast Region Hdqrs.
    2984 Shawano Avenue
    Green Bay

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Michael Wenholz at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copy of Rule and Submission of Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Michael Wenholz, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until February 28, 2008. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Wenholz.

Initial Regulatory Flexibility Analysis

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Analysis

NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

The Department estimates that there will be a minor, one-time increase in work load associated with this rule package. Staff will be involved with participating in training sessions and drafting WPDES permits, especially through the first round of reissued permits (i.e. the first 5 years of the rule being in effect). The increase in permit drafting work load will include learning a new process, potentially learning new automated systems, and calculating more limitations than in the past. Since the degree to which this work load will increase is difficult to estimate, the Department is characterizing this cost increase as “indeterminate".

Notice of Hearings

Natural Resources

(Environmental Protection-General,
Chs. NR 100—)

[CR 07-110]

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11 (2) (a) and 281.15, Stats., interpreting s. 281.15, Stats., the Department of Natural Resources will hold public hearings on revisions to ch. NR 105, Wis. Adm. Code, relating to surface water quality criteria. The Department is proposing to update surface water quality criteria for 15 substances and to develop new surface water quality criteria for 2 other substances. These updates and additions are the result of two federal initiatives. First, in 2000 U.S. EPA formally objected to aquatic life criteria for several substances in ch. NR 105 because the state criteria were not as protective as the federal criteria. Second, U.S. EPA has developed and updated human health criteria for some additional substances subsequent to the 2000 objections. The Department's proposed updates and additions will ensure federal approval of the criteria for those substances. No changes are proposed in the procedures used for developing criteria in ch. NR 105, only the numerical criteria for some of the substances regulated are being addressed at this time.

Of the 18 substances proposed for criteria revisions, it is estimated that no discharge permits will be affected for 14 of those substances. This is because the criteria are high enough and/or the discharge levels are low enough that no effluent limitations will be needed in any permit. The only substances for which changes in permit limitations are foreseen are arsenic, copper, nickel and selenium.

NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:

January 3, 2008   Room G09
Thursday at 1:00 p.m.   GEF #2 State Office Building
  101 South Webster Street
  Madison

January 7, 2008   Room 185
Monday at 6:00 p.m.   DNR West Central Region Hdqrs.
  1300 W. Clairemont St.
  Eau Claire

January 14, 2008   Conference Room
Monday at 6:00 p.m.   Jim Coughlin Building
  625 County Road Y
  Oshkosh

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Jim Schmidt at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copy of Rule and Submission of Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov or to: JamesW.Schmidt @Wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Jim Schmidt, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until February 16, 2008. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Schmidt.

Initial Regulatory Flexibility Analysis

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Analysis

NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

Revenues. In the past 4 years, WPDES fees associated with copper limits have ranged between $45,000 to $60,000 per year. Assuming that copper-related fees would increase by 15% under this proposal, and applying that percentage to the upper range of copper-related fees collected, the Department estimates that the proposed rule package would increase annual WPDES fee collections under NR 101 by $9,000 ($60,000 x 15%). Furthermore, the Department estimates that the proposed rule changes for the remaining 17 toxic substances will have a minimal impact on WPDES fee collections.

Costs. A minimal amount of DNR staff time will be required to implement the proposed rule changes.

Notice of Hearings

Natural Resources

(Environmental Protection-Water Regulation, Chs. NR 300—)

[CR 07-112]

NOTICE IS HEREBY GIVEN that pursuant to ss. 30.20(1), (1k), (1t) and (2), 30.206 and 227.11(2), Stats., interpreting ss. 30.20(1), (1g), (1k), (1m), (1t) and (2) and 30.206, Stats., the Department of Natural Resources will hold public hearings on revisions to ch. NR 345, Wis. Adm. Code, relating to general permit standards to allow operation of a motor vehicle on the beds of outlying waters to remove algae, mussels, dead fish and similar large public nuisance deposits and for the removal and control of invasive plants on exposed lakebeds.

The operation of motor vehicles and the removal or disturbance of materials on the beds of navigable waterways (also known as dredging) is regulated by ch. 30, Stats., and ch. NR 345. The statutes and current rule allow lakefront property owners to apply for an individual permit to use mechanized methods to remove nuisance deposits or other invasive or unwanted vegetation. However, individual permits require a $500 application fee and a 30-day public comment period before the permit can be issued.

Considering the changing lakeshore due to decreased water levels and the abundance of invasive species, the department proposes to revise ch. NR 345 to create two new general permits. The general permits would allow lakefront property owners to operate motor vehicles on the beds of “outlying" navigable waters to remove public nuisance deposits (Cladophora, Zebra mussels, dead fish, etc.) and to control and manage invasive vegetation on exposed lakebed more efficiently while complying with general permit conditions created to protect the public interest in the lakebed. The general permit has a $50 application fee and is processed in 30 days.

NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:

January 15, 2008   Room 151
Tuesday at 10:00 a.m.   Dreyfus State Office Building
    141 NW Barstow St.
    Waukesha

January 16, 2008   Lake Michigan Room
Wednesday at 10:00 a.m.   DNR Northeast Region Hdqrs.
    2984 Shawano Avenue
    Green Bay

January 17, 2008   Video conference participation
Thursday at 10:00 a.m.   will be available at:

    Room 306
    Conference Center
    Wis. Indianhead Tech. College
    2100 Beaser Avenue
    Ashland

    Room L130
    UW Center – Marinette
    750 W. Bay Shore St.
    Marinette

    Large Conference Room
    DOT Superior-District 8
    1701 N. 4th St.
    Superior

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Roberta Lund at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copy of Rule and Submission of Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov or to MartinP.Griffin@ Wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Martin Griffin, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until January 21, 2008. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Griffin.

Initial Regulatory Flexibility Analysis

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., the proposed rules may have an impact on small businesses. The initial regulatory flexibility analysis is as follows:

Types of small business that will be affected by the rule

Small businesses affected by this rule will include contractors, developers and consultants who provide plans or design for projects along public navigable waterways which may include the removal of unwanted aquatic plants and dead animals from shoreline as well as participating in invasive species control and management.

Reporting, bookkeeping and other procedures required for compliance with the rule

The person responsible for a project in or along a lake or stream must develop plans and occasionally conduct some analyses, submit an application, and observe the site during construction. For some activities, photographs of the completed project are required. For the aquatic plant management activities outlined in the rule, an invasive species control plan that includes a description of the existing condition (including the types of plants present and their abundance); a strategy for the control of the invasive species; a plan for the re-establishment of the native plant community; and a monitoring plan to assess the success or failure of the control plan may be required.

Type of professional skills necessary for compliance with the rule

Map reading, basic computer use, mathematics, drawing to scale, and clear writing are the skills needed to comply with these rules. While it may be helpful or efficient, hiring a consulting firm is not necessary to comply with these requirements. Many projects are planned and conducted by individuals with no professional background. If the site has particularly challenging features, then professional ecological or engineering expertise may be helpful.

Small business regulatory coordinator

The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Analysis

NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

The Department estimates that under the proposed rule, approximately 2 dredging requests per year will continue to require a $500 individual permit, for a total of $1,000 in individual permit revenue. It is estimated that the remaining 38 requests will require general permits, for a total of $1,900 in general permit revenue (38 general permits x $50/each). Therefore, total revenue for individual and general permits is estimated to be $2,900, which represents a $1,900 increase over revenue generated under current rules.

The rule changes will have no impact on local government costs.