Rule-Making Notices
Notice of Hearing
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed amendment to Chapter
ATCP 1, Wis. Adm. Code, relating to administrative orders and contested cases.
Hearing Information
DATCP will hold the public hearing at the time and location shown below.
August 27, 2009
1:00 – 2:30 p.m.
WI Dept. of Agriculture, Trade & Consumer Protection
2811 Agriculture Drive, Room 456
Madison, WI 53718
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by August 24, 2009, by writing to Emily Phelps, Office of the Secretary, P.O. Box 8911, Madison, WI 53708-8911,
emily.phelps@wi.gov, or (608) 224-5013. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.
Appearance at the Hearing and Submission of Written Comments
DATCP invites the public to attend the hearing and comment on the rule. Following the hearing, the hearing record will remain open until September 15, 2009 for additional written comments. Comments may be sent to the Office of the Secretary, at the address below, by email to
Emily.phelps@wi.gov or online at
https://apps4.dhfs. state.wi.us/admrules/public/Home.
To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address above, or by emailing to
Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.
Copies of Proposed Rule
You may obtain free copy of this proposed rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling (608) 224-5160 or emailing
michelle.reinen@wi.gov. Copies will also be available at the hearing. 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
The Department of Agriculture, Trade and Consumer Protection (DATCP) administers a wide range of laws related to food safety, disease control, consumer protection, agricultural resource management and other matters. Under these laws, DATCP may issue various kinds of administrative orders and take other administrative actions that have the force of law.
Persons adversely affected by these orders and actions may request a trial-type “contested case" hearing under ch.
227, Stats., and ch.
ATCP 1, Wis. Adm. Code (ATCP 1). This rule updates and clarifies current “contested case" procedures under ATCP 1.
Statutes interpreted
Statutory authority
Explanation of agency authority
DATCP has broad authority under s.
93.07 (1), Stats., to adopt rules needed to implement laws under its jurisdiction. DATCP has specific authority, under the provisions cited above, to adopt rules related to administrative orders and contested cases.
Related rules and statutes
DATCP administers a wide range of statutes, including chs.
88,
91 to
100,
126 and
136, Stats. In the administration of these statutes, DATCP may issue administrative orders such as license suspensions, administrative injunctions (e.g., orders prohibiting unfair business practices), hazardous product bans, holding orders to prohibit the distribution of adulterated food or commodities, plant and animal quarantine orders, orders condemning adulterated food or diseased animals, and a variety of other orders specified by statute.
Background
An impartial administrative law judge (ALJ) presides over a “contested case" hearing. DATCP is currently in the process of transferring its ALJ functions to the department of administration, division of hearings and appeals. ALJs from the division of hearings and appeals will conduct DATCP “contested case" hearings, subject to ch.
227, Stats., and ATCP 1. DATCP will pay the division of hearings and appeals for the ALJ services.
The DATCP Secretary or designee typically makes the final decision in a “contested case," after reviewing the ALJ's proposed decision. The final decision is subject to judicial review, as provided in ch.
227, Stats.
Rule content
Administrative Law Judge
Under current rules, the DATCP secretary may appoint an ALJ to hear a DATCP “contested case." This rule clarifies that the secretary may appoint an ALJ from the department of administration (division of hearings and appeals) or another state agency, with the agreement of that agency. An ALJ must conduct a DATCP “contested case" according to DATCP procedural rules in ATCP 1.
Producer Security; Recovery Proceedings
DATCP currently administers an agricultural producer security program under ch.
126, Stats., to protect agricultural producers against financial defaults by grain warehouse keepers, grain dealers, milk contractors and vegetable contractors. In the event of a default, DATCP may initiate a recovery proceeding to determine the amount of producer claims allowed under the producer security program. The recovery proceeding is conducted as a “contested case" according to ch.
126, Stats., and ATCP 1. This rule updates ATCP 1 to incorporate current procedures and terminology under ch.
126, Stats.
“Contested Case" Hearing Requests and Assignments
This rule clarifies current procedures for requesting a “contested case" hearing, and for granting or denying a hearing request, consistent with current standards under ch.
227, Stats. The clarified procedures will help DATCP coordinate “contested case" hearings and ALJ assignments with the department of administration, division of hearings and appeals.
Under this rule, as under current rules, the DATCP secretary will make the initial decision to grant or deny a “contested case" hearing request, and will issue a written notice to the parties. Under this rule, the secretary must grant or deny a “contested case" hearing request within 30 days after a complete request is filed with the secretary (compared to 20 days under current rules).
If the secretary issues a notice granting a “contested case" hearing request, the notice will assign an ALJ and set a date for hearing or for a pre-hearing conference with the ALJ. If the notice sets an actual hearing date, the hearing date may be not sooner than 30 days after the notice is issued (compared to 10 days under current rules). The ALJ may schedule or reschedule a hearing date, as necessary.
Hearing on Summary Orders
Under many of its programs, DATCP is authorized to issue summary orders (without prior notice or hearing) to protect public health, safety or welfare. These include food holding orders, food condemnation orders, animal disease quarantine and condemnation orders, invasive pest quarantine and control orders, and a variety of other orders. The recipient of a summary order may request a hearing on that order.
This rule clarifies that the recipient of a summary order may request an immediate informal hearing, or a formal “contested case" hearing, or both. Many cases are resolved with an informal hearing, without the need for a formal “contested case" hearing. A requested informal hearing must be conducted as soon as reasonably possible, but not more than 20 days after the hearing request (compared to 10 days under current rules). A requester may agree to a later informal hearing date.
Informal hearings are conducted by DATCP managers or staff who have had no prior involvement in the case, and who are authorized to take or recommend remedial action as necessary. This rule clarifies that informal hearings are not governed by formal “contested case" procedures. If a matter is not successfully resolved by informal hearing, the affected party may request a formal “contested case" hearing.
Parties Represented by Attorney
Under current rules, a party to a formal “contested case" hearing may appear on his or her own behalf or may have a legal representative. Under this rule, the representative must be an attorney who is authorized to practice law in this state. As under current rules, the attorney's actions are binding on the represented party.
ALJ Authority
This rule clarifies, but does not substantially alter, the authority exercised by an ALJ (including an ALJ from the department of administration, division of hearings and appeals) in a DATCP “contested case."
Disclosure of Witnesses and Evidence; Discovery
Under current rules and this rule, parties must generally disclose (to opposing parties) the witnesses and evidence that they intend to call or offer in a “contested case hearing." Under this rule, the parties must disclose their witnesses and evidence at least 10 days prior to hearing (current rule requires 7 days).
Under current rules and this rule, parties may have a right to “discover" (via pre-hearing depositions, interrogatories, etc.) relevant information possessed by opposing parties. Under this rule, “discovery" must be completed at least 10 days prior to hearing.
Hearing Transcripts
Under current rules, hearings in DATCP “contested cases" may be electronically recorded or transcribed in writing. This rule clarifies that hearings will normally be electronically recorded (the normal method used by the department of administration, division of hearings and appeals) unless the ALJ orders a written transcript with the approval of DATCP.
•
Under current rules and this rule, any party may request a written transcript.
•
Under current rules and this rule, if a written transcript is prepared in response to a request from any party, that party must pay the transcription and copying cost. Under this rule, DATCP must charge its actual per-page transcription cost (compared to a standard per-page charge of $1.75 under current rules) plus a copying cost of 25 cents per page. Other parties may obtain copies by paying a copying cost of 25 cents per page.
•
Under current rules and this rule, if DATCP orders a written transcript for its own purposes or for purposes of judicial review, DATCP must pay the transcription cost. Other parties may obtain copies for 25 cents per page.
Videoconferencing
Under this rule, an ALJ may conduct a “contested case" hearing by videoconferencing if current statutory standards for videoconference court proceedings are met.
Order of Proof
This rule clarifies, but does not substantially alter, current rules related to the order of proof in “contested cases." Generally speaking, the party bringing the case has the initial burden of going forward.
Proposed ALJ Decision; Objections
Under current DATCP rules, the DATCP secretary is normally the final decisionmaker in a “contested case" unless the secretary delegates that authority to the ALJ or another official. If the ALJ is not the final decisionmaker, the ALJ must prepare a proposed decision for consideration by the final decisionmaker. The ALJ must provide copies of the proposed decision to the parties. Under this rule, parties have at least 30 days to file objections to the proposed decision (compared to 15 days under current rules).
Settlement
This rule clarifies, but does not substantially alter, current procedures for settling “contested cases." Parties may settle a “contested case" at any time, subject to the approval of the final decisionmaker. Among other things, the parties may stipulate to a DATCP order resolving the disputed matter.
Frivolous Claims; Cost Award
Under s.
227.485, Stats., and current DATCP rules, if an individual or small business prevails in a “contested case" against DATCP, the ALJ may order DATCP to pay costs and attorney fees to the prevailing individual or small business unless the ALJ finds that DATCP's losing position was substantially justified. This rule does not change these current rule provisions.
Under s.
227.483, Stats., if an ALJ finds that any party (including a private party or DATCP) has asserted a “frivolous" claim in a contested case, the ALJ may order the party to reimburse another party (including a private party or DATCP) for reasonable costs and attorney fees incurred in defending that claim. This rule incorporates the provisions of s.
227.483, Stats., into ATCP 1. Under this rule, as under s.
227.483, Stats., an ALJ may not find that a claim is “frivolous" unless the ALJ finds at least one of the following:
•
The action, claim or defense was initiated or pursued in bad faith, solely for the purpose of harassing or maliciously injuring another.
•
The party or party's attorney knew or should have known that the action, claim or defense was without any reasonable basis in law or equity, and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
Comparison with federal regulations
A variety of federal regulations govern procedures in federal “contested cases." However, none of those regulations has a direct bearing on this rule.
Comparison with rules in adjacent states
Surrounding states, including Illinois, Indiana, Iowa, Michigan and Minnesota, have their own procedural regulations related to administrative “contested cases" in those states. None of those regulations has a direct bearing on this rule. Wisconsin is generally regarded as having more well-developed “contested case" procedures and standards than most other states.
Summary of factual data and analytical methodologies
This rule does not depend on any complex analysis of data. This rule makes minor changes to current rules.
Small Business Impact
This rule will have no significant effect on business.
The small business regulatory coordinator is Keeley Moll and can be contacted at:
Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.
Fiscal Estimate
This rule will clarify and update current procedures in “contested cases," but will not make major substantive changes. This rule will not increase or decrease the number of cases, nor will it have a significant impact on case processing costs.
This rule will have no fiscal effect on DATCP or local units of government.
State fiscal effect
None.
Local government fiscal effect
None.
Fund source affected
GPR.
Affected Ch.
20 appropriation
Agency Contact Person
Karen Schultz
(608) 224-5023
Notice of Hearing
Commerce
NOTICE IS HEREBY GIVEN that pursuant to ss.
101.02 (1),
101.19,
145.02 (3),
101.982, and
101.983, Stats., the Department of Commerce will hold a public hearing on proposed rules under Chapters
Comm 2 and
82, relating to permit to operate, registration and filing fees.
Hearing Information
The public hearing will be held as follows:
Date and Time
|
Location
|
August 13, 2009
|
Conference Room 3C
|
1:00 p.m.
|
Thompson Commerce Center
|
|
201 W. Washington Avenue
|
|
Madison
|
This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 or (608) 264-8777 (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Appearance at Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until August 21, 2009, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at
jim.quast@Wisconsin.gov.
Copies of Proposed Rules
The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at
www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at
roberta.ward@wisconsin.gov, or at telephone (608) 266-8741 or TDD Relay dial 711 in Wisconsin or (800) 947-3529. Copies will also be available at the public hearing.
Analysis Prepared by Department of Commerce
Statutes interpreted
Statutory authority
Related statute or rule
None
Explanation of agency authority
Chapters
101 and
145, Stats., grant the department general authority for the purpose of protecting public health, safety and welfare by establishing standards and regulatory oversight programs for the construction and maintenance of buildings, structures and dwellings and their components. These programs are administered by the Safety and Buildings Division. Section
101.19, Stats., grants the department authority to promulgate rules to fix and collect fees that reflect the cost of providing certain programs. Section
145.02 (3) (h), Stats., grants the department authority to promulgate rules concerning the testing of cross-connection control devices.
Summary of proposed rules
The rules propose to increase the permit to operate fees for boilers, pressure vessels, anhydrous ammonia systems, mechanical refrigeration systems, conveyances and passenger ropeways from $35 to $50.
The rules propose to update and streamline the department's oversight of certain types of cross connection control devices (assemblies), reduced pressure principle backflow preventers, reduced pressure fire protection principle backflow preventers, spill resistant vacuum breakers, reduced pressure detector fire protection backflow prevention assemblies and pressure vacuum breakers. The proposal reduces the registration fee for these assemblies and establishes filing requirements and fees for the annual performance test reports for these assemblies. The fees reflect the ability to register and file the information electronically via the internet.
The rules also propose to clarify that department plan review and approval is required for certain water treatment systems where the source of water is a well or surface water.
Comparison with federal regulations
An internet-based search in the Code of Federal Regulations and the Federal Register did not identify any existing or proposed federal regulations that address these topics.
Comparison with rules in adjacent states
The following is a comparison of permit to operate fees charged in adjacent states.
Illinois
Illinois requires payment of $200 for an annual certificate of operation for an elevator. Illinois regulations for boilers require certificates of inspection for $70.
Iowa
Iowa's fee for an annual elevator permit is $50.
Michigan
For elevators, Michigan's biennial and annual certificates of operation are $45.
Minnesota
The annual registration fee for a boiler in Minnesota is $10.
An internet-based search regarding the registration of cross connection control devices or filing of cross connection control device performance testing results did not produce any results for the 4 adjacent states of Illinois, Iowa, Michigan and Minnesota.
Summary of factual data and analytical methodologies
The fees for permits to operate have not been revised since 2000. The proposed changes are necessary in order to bring revenues in line with the cost of providing Division services.
The fee currently required by the Safety and Buildings Division to register testable cross connection assemblies was intended to cover the Division's costs for overseeing the annual filing of performance tests over the entire life of each assembly. The proposed fee structure is more equitable because it reflects that some assemblies are in use longer than other assemblies. The proposed fee changes are also necessary in order to bring revenues in line with the cost of providing Division services.
Environmental Impact
The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
Small Business Impact
The proposed fee increase for permits to operate will affect businesses which own any boiler, pressure vessel, anhydrous ammonia system, mechanical refrigeration system, conveyance and passenger ropeway. Permits to operate are typically issued after a code required periodic inspection. Permits to operate for conveyances and passenger ropeways are issued on a yearly basis. Most permits to operate for boilers, pressure vessels, anhydrous ammonia systems, and mechanical refrigeration systems are issued on a three-year basis. Over the last 3 years on average the department has issued roughly 38,000 permits to operate annually. Raising the permit to operate fee by $15 will increase the department's revenues annually by $570,000.
The proposed revisions regarding the cross connection control program will affect businesses where certain types of cross connection control assemblies are to be installed or exist to protect public water supplies. The types of cross connection control assemblies under this program are reduced pressure principle backflow preventers, reduced pressure fire protection principle backflow preventers, spill resistant vacuum breakers, reduced pressure detector fire protection backflow prevention assemblies and pressure vacuum breakers. Currently there are just over 33,000 of these assemblies registered with the department. These types of assemblies are required to undergo an annual performance test to ensure their continued protection of water supplies. The department is proposing to reduce the registration fee for these assemblies from $200 to $100; or $90 if completed through the Safety and Buildings Division's web site. Over the last 3 years an average of 2275 new assemblies have been annually registered with the department. In 2008 approximately 25,000 performance tests were submitted to the department. The department is proposing a $40 fee, or a $30 fee if completed through the Safety and Buildings Division's web site, for the filing of the performance test reports. The department estimates that annual revenues would increase by $527,000, if 90% of the registrations and performance tests are reported through the Division's web site.
An economic impact report has not been required pursuant to s.
227.137, Stats.
Initial regulatory flexibility analysis
Types of small businesses that will be affected by the rules.
The proposed fee increase for permits to operate will affect businesses which own any boiler, pressure vessel, anhydrous ammonia system, mechanical refrigeration system, conveyance and passenger ropeway.
The proposed revisions regarding the cross connection control program will affect businesses where certain types of cross connection control assemblies are to be installed or exist to protect public water supplies.
Reporting, bookkeeping and other procedures required for compliance with the rules.
The proposed changes to chapters Comm 2 and 82 do not imposed any additional reporting, bookkeeping or other procedures for compliance.
Types of professional skills necessary for compliance with the rules.
The proposed changes to chapters Comm 2 and 82 do not any type of new professional skills for compliance.
Rules have a significant economic impact on small businesses?
No.
Small business regulatory coordinator
The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone (608) 267-0297, or Email at
carol.dunn@wisconsin.gov.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
Current rules require owners to obtain and hold permits to operate any boiler, pressure vessel, anhydrous ammonia system, mechanical refrigeration system, conveyance and passenger ropeway. Permits to operate are typically issued after a code required periodic inspection. Permits to operate for conveyances and passenger ropeways are issued on a yearly basis. Most permits to operate for boilers, pressure vessels, anhydrous ammonia systems, and mechanical refrigeration systems are issued on a three-year basis. Over the last 3 years on average the department has issued approximately 38,000 permits to operate annually. Raising the permit to operate fee by $15 will increase the department's revenues annually by $570,000.
Under current rules certain types of cross connection control devices that protect public water supplies are required to be registered with the department upon installation and tested annually. The types of cross connection control assemblies under this program are reduced pressure principle backflow preventers, reduced pressure fire protection principle backflow preventers, spill resistant vacuum breakers, reduced pressure detector fire protection backflow prevention assemblies and pressure vacuum breakers. Currently, there are just over 33,000 of these assemblies registered with the department. The department is proposing to reduce the registration fee for these assemblies from $200 to $100; or $90 if completed through the Safety and Buildings Division's web site. Over the last 3 years an average of 2275 new assemblies have been annually registered with the department. In 2008 approximately 25,000 performance tests were submitted to the department. The department is proposing a $40 fee, or a $30 fee if completed through the Safety and Buildings Division's web site, for the filing of the performance test reports. The department estimates that annual revenues would increase by $527,000, if 90% of the registrations and performance tests are reported through the Division's web site.
The proposed rules to update and streamline the department's oversight of certain types of cross connection control assemblies do not increase the workload beyond current resources and staff levels.
State fiscal effect
Increase existing revenues.
Local government fiscal effect
None.
Fund sources affected
PRO.
Long-range fiscal implications
No long-range fiscal implications are anticipated.
Agency Contact Person
James Quast, Program Manager, (608) 266-9292 or email jim.quast@wisconsin. gov.
Notice of Hearing
Natural Resources
Fish, Game, etc., Chs.
NR 1—
NOTICE IS HEREBY GIVEN that pursuant to ss.
29.014 (1),
29.039,
29.405 (3),
29.053,
29.531 and,
29.533, Stats., the Department of Natural Resources will hold public hearings on revisions to Chapters
NR 19,
20,
21,
22 and
23, Wis. Adm. Code, relating to minor, non-substantive “housekeeping" changes to fishing regulations on the inland, outlying and boundary waters of Wisconsin.
Hearing Information
The hearings will be held:
Friday — August 14, 2009
2:00 p.m.
101 S. Webster Street
Room 406
Madison, WI
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Joseph Hennessy at (608) 267-9427 with specific information on your request by August 7, 2009.
Copies of Proposed Rules and Submission of Written Comments
The proposed rules and fiscal estimates may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov. Written comments on the proposed changes may be submitted via U.S. mail to Mr. Joseph Hennessy, Bureau of Fisheries Management, P.O. Box 7921, Madison, WI 53707. Written comments shall be postmarked not later than August 5, 2009. Written comments whether submitted electronically or by U.S. mail will be summarized for the Natural Resources Board. Written comments will have the same weight and affect as oral statements presented at the hearings. A copy of the proposed rules and fiscal estimate can be obtained from Mr. Joseph Hennessy.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Plain language rule analysis
The proposed rules will:
1. Clarify that hoop nets may not be set within 200 feet of a fishway, lock, or dam, and that individuals may not use hook-and-line, setlines, or nets for taking turtles in a way or during any time when these methods are prohibited for fishing;
2. Clarify that the possession limit for trout from inland waters is 10 fish, and is separate from the possession limit for Great Lakes trout and salmon;
3. Clarify language governing the prohibition of tagging and releasing fish without a permit;
4. Resolve conflicts between state statute and administrative code regarding rules governing fishing with a bow and arrow. State statute provides that the department shall allow bowfishing at night wherever it is allowed during daylight hours in inland, outlying, and boundary waters;
5. Correct administrative errors which occurred during the drafting of rules regarding harvest of catfish from Winnebago system waters. There is a total daily bag limit of one flathead catfish, rather than 2, allowed from Winnebago system waters, and there is no closed season for channel catfish in these waters;
6.
Clarify that dip netting and seining for cisco and whitefish are permissible at any time of day in Keyes lake (Florence county), Trout and Pallette lakes (Vilas county), and in all other waters not specifically listed in the county and statewide table in s.
NR 20.20, and also clarify that seining for smelt is permissible any time of day in Lake Superior;
7. Repeal code related to walleye harvest regulations in Enterprise lake (Langlade county). The code being repealed was improperly placed in the section for rules related to lakes in Lincoln county. The proper code related to walleye regulations in Enterprise lake already exists under the section related to rules for lakes in Langlade county;
8. Correct an omission which occurred in the implementation of rules which extended the open season for muskellunge in waters south of Highway 10 from November 30 to December 31. The later season-ending date applies to Winnebago system waters;
9. Correct the effective end date for bag limit adjustments made in the Wisconsin Ceded territory in response to tribal declarations and harvest, and correct inconsistency in language which applies to readjustments of bag limits after spring tribal harvest;
10. Clarifies license requirements for anglers fishing Wisconsin- Iowa boundary waters, and corrects the name of the boundary on the Wisconsin side of the Mississippi river; and
11. Correct omissions made during the implementation of rules governing harvest of lake sturgeon from Wisconsin-Michigan boundary waters. Rules which were adopted for inland waters also applied to these boundary waters, but the appropriate changes in code were not made.
Small Business Impact
Pursuant to s.
227.114, Stats., it is not anticipated that the proposed changes will have a significant economic impact on small businesses.
Environmental Impact
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.
Fiscal Estimate
Summary
The rule changes do not reflect changes in Department policy and are limited to clarification of existing code or changes to pieces of code which do not accurately reflect rules previously adopted by the Natural Resources Board and reviewed by the Legislature, after appropriate public hearings.
None of the proposed changes have fiscal impacts.
State fiscal effect
None.
Local government fiscal effect
None.
Agency Contact Person
Joseph Hennessy
(608) 267-9427
Notice of Hearings
Natural Resources
Fish, Game, etc., Chs.
NR 1—
NOTICE IS HEREBY GIVEN that pursuant to ss.
29.014,
29.885 (3) (b),
169.11,
169.36 (9) (b) and
227.11, Stats., the Department of Natural Resources will hold public hearings on revisions to Chapters
NR 12 and
16, Wis. Adm. Code, relating to regulating feral or wild swine, wolf-dog hybrids and mute swans as captive wild animals.
Hearing Information
The hearings will begin at 6:00 p.m. on the following dates and locations:
August 13, Thursday
West Bend Public Agency Center, Room 1113 A and B,
333 E. Washington St., West Bend, 53095
August 18, Tuesday
Wausau Best Western Midway Hotel,
2901 Hummingbird Road, Wausau, 54401
August 18, Tuesday
Rhinelander's James Williams Middle School,
915 Acacia Lane, Rhinelander, 54501
August 19, Wednesday
La Crosse State Office Bldg., Basement Conference Rooms, 3550 Mormon Coulee Road, La Crosse, 54601
August 19, Wednesday
Northeast Wis. Technical College, Room CB 213 A and B, 2740 W. Mason Street, Green Bay, 54307
August 27, Thursday
Northern Great Lakes Visitor Center,
29270 County Highway G, Ashland, 54806
August 31, Monday
Dunn County Fish and Game Association Clubhouse,
1600 Pine Ave E., Menomonie, 54751
This hearing will be followed by a public hearing on Board Order WM-16-09 relating to deer management unit population goals. The hearing on WM-16-09 begins at 7:00 p.m. at the same location.
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 Scott Loomans at (608) 267-2452 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed 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. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until August 31, 2009. 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. Loomans.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Plain language rule analysis
2007 ACT 119 (ss.
169.11 Stats.) requires that the department designate wild or feral hogs as harmful wild animals. The same statute, s.
169.11 Stats., also authorizes that any non-native animal that is a threat to the environment, public health or the health of domestic animals, or is capable of inflicting severe physical harm to humans or domestic animals may be designated a harmful wild animal. Specifically, these rule proposals:
Section 1 establishes that harmful wild animals may not be trapped and relocated without written permission of the department.
Section 2 adds wild or feral swine, mute swans and wolf dog hybrids to the list of species which are classified as harmful wild animals and establishes definitions.
Section 3 creates an exemption from the requirement that animals be confined at all times so that wolf-dog hybrids can be controlled by a leash.
Section 4 eliminates the option of keeping mute swans that are only sexually sterilized and not also pinioned in pens that are not covered and clarifies that mute swans which are both pinioned and sexually sterilized may not be at large from the property which is licensed.
Section 5 allows the possession of wild or feral swine only by certain people who are producing them for meat and slaughter off-site or by a custom meat processor and that feral or wild swine are permanently marked with identifying information.
Section 6 requires wolf-dog hybrids to be sexually neutered and permanently marked with identifying information.
Sections 7, 8 and 11 establish pen standards and allow that wolf-dog hybrids may utilize space that is intended for human occupancy.
Section 9 requires that enclosures for wild or feral swine include a section of fence or wall that is buried at least 30 inches.
Section 10 establishes that secondary, perimeter fences are not required for housing mute swans and that the perimeter fence standards are reduced for wolf-dog hybrids in rural areas.
Section 11 applies the existing pen space requirements for captive timber wolves that are held in pens with open tops to wolf-dog hybrids that are held in pens with open tops. This section also establishes that minimum pen size standards do not apply until January 1, 2014.
Section 12 establishes record keeping and reporting requirements for wild or feral swine, wolf-dog hybrids and mute swans.
Section 13 requires the owners of harmful wild animals to report escapes to the department within 24 hours of becoming aware of the escape. This section also clarifies that the department may dispose of an escaped harmful wild animal upon determining that the animal poses a risk to public safety or to the health of other domestic or wild animals.
Related statute or rule
There are no state rules or statutes currently under promulgation that directly relate to the provisions that are proposed in this administrative order.
Comparison with federal regulations
Federal regulations allow states to manage wildlife resources and captive wild animals located within their boundaries provided they do not conflict with regulations established in the Federal Register.
As a result of rule making by the United States Fish & Wildlife Service that was completed in 2005, mute swans are no longer regulated by the Migratory Bird Treaty Act and are federally unprotected. Under ch.
169, Stats., the department has the authority to regulate migratory birds held in captivity and defines migratory birds by cross-referencing Ch.
50 part 10.13 of the Code of Federal Regulations. The department currently has regulations regarding the possession of mute swans that are held in captivity but, because that species is no longer listed under Ch.
50 part 10.13 CFR, those regulations are no longer in effect.
The United States Fish & Wildlife Service has regulated gray or timber wolves by designating them as threatened or endangered species. The service does not regulate captive wolves or wolves that are hybrids with domestic dogs or coyotes.
States are responsible for the regulation of wild or feral hogs both in the wild and in captivity and none of these rule changes violate or conflict with the provisions established in the Code of Federal Regulations.
Comparison with rules in adjacent states
These rule change proposals do not represent significant policy changes and do not differ significantly from surrounding states. All surrounding states have regulations and rules in place for the management of wild animals and the regulation of certain captive wild animals.
Iowa regulates as a “Dangerous wild animal" swine which are members of the species Sus scrofa linnaeus including, but not limited to, swine commonly known as Russian boar or European boar of either sex. Possession is generally prohibited except for certain shooting preserves. Minnesota regulates Eurasian wild pigs and their hybrids (
Sus scrofa subspecies and Sus scrofa hybrids), excluding domestic hogs (S. scrofa domesticus) and European wild boars as a "restricted species" of invasive animal. Possession is prohibited in most cases. Illinois and Michigan have regulations that are primarily animal health related.
Illinois prohibits the possession of wolves and wolf hybrids under the Illinois Dangerous Animals Act. Minnesota explicitly prohibits the release or introduction of wolf-dog hybrids into the wild. Michigan's Dog Cross Act of 2000 established significant restrictions on the ownership, possession, and care of certain wolf-dog crosses; prohibits the ownership and possession of certain wolf-dog crosses and establishes fees. Iowa does not have significant regulations for wolf-dog crosses. Nationally, many states regulate or prohibit the possession of wolf-dog crosses. The state of Washington is considering a prohibition through legislation being worked on in spring, 2009.
Mute swans held in captivity in Michigan require a department permit and must be pinioned. In Minnesota, mute swans are regulated as an invasive species and a game farm permit and fencing are required for legal possession. Iowa discourages allowing the free-flight of mute swans but does not regulate them. They are present in the wild in Iowa and considered a challenge to their trumpeter swan restoration effort. Illinois does not regulate captive mute swans. Mute swans are common in the wild in Illinois.
Summary of factual data and analytical methodologies
The rule changes included in this order do not deviate from current department policy on the management of wildlife, captive wildlife, and the regulation of animals which are listed as harmful wild animals. As required by ch.
169, Stats., consultation with the Department of Agriculture, Trade and Consumer Protection and the Department of Health Services has occurred.
Only persons who possessed wild or feral swine, prior to the effective date of this rule, for the purpose of producing meat could be licensed to possess that species. Animals may only be killed at or transported to licensed meat facilities.
Designation as a harmful wild animal requires a license for the possession, transportation, sales, transfer, import, and exhibition. People who are in possession of a wild or feral hog, mute swan, or wolf-dog hybrid must possess their license and display it to the department upon request and carcasses must be accompanied by information such as a receipt indicating where and when the carcasses were acquired.
Pen standards are established for all three species. Feral and wild hogs and wolf-dog hybrids must be housed in enclosures constructed of suitable materials, structurally sound, and kept in good repair. Wolf-dog hybrids must be housed in closed top pens that are a minimum of 300 square feet. There may be no more than two wolf-dog hybrids per 300 square foot pen and at least 100 additional square feet for each additional hybrid. The pen height shall be a minimum of six feet. Wolf-dog hybrid pens with open tops shall be a minimum of 1000 square feet. The walls shall be a minimum of 10 feet in height with an additional 4 feet at the top slanted in at a 30º to 45º angle. In order to allow time for owners of wolf dog hybrids to modify and improve facilities, new pen standards would not be effective until January 1, 2014. A second perimeter fence is required for feral and wild hogs and wolf-dog hybrids. Housing standards for all harmful wild animals require that animals are provided with adequate food and water, facilities that are in good repair, protected from injury, and free of trash and accumulation of waste. Housing must provide shelter from the elements and adequate space. Animals may be confined in a different manner on a temporary basis to provide health care or for transportation.
Record keeping and quarterly reporting is required for harmful wild animals and shall include records of all transactions, deaths, and harvesting of animals on the licensed premises. Reports must be submitted to the department on the last day of the months of January, April, July and October. All records must be kept by the owner for three years and displayed to the department upon request.
Taking of all three species alive from the wild without department authorization is currently prohibited under Ch.
NR 10.08(5) Wis. Admin. Code except when the person is the owner of the animal or acting on behalf of the owner. The department would continue to allow taking animals from the wild in situations such as when an individual or organization, devoted to the rescue of unwanted or escaped wolf-dog hybrids, acts as an agent of the department. The department could also allow activities by a local unit of government with responsibility for controlling nuisance or dangerous animals. Stocking any of these species into the wild is prohibited. Propagation is allowed by license except that mute swans which are not kept in pens must be sexually neutered and pinioned and wolf-dog hybrids must be sexually neutered. Rehabilitation of harmful wild animals is not allowed but medical treatment may be allowed by the department or its agents.
Reporting escapes of all three species to the department within 24 hours of discovery of the escape is required in order to facilitate recovery efforts.
The possession of harmful wild animals must be consistent with ordinances established by local units of government.
This rule making is designed to reduce the possibility of feral or wild hogs, which are held in captivity, escaping to the wild. Feral hogs, also known as wild boars, are a threat to native ecosystems and are disease threats to domestic swine herds. Pseudorabies and swine brucellosis are among several livestock diseases for which the US Department of Agriculture's Animal and Plant Health Inspection Service has established national eradication programs with a goal of elimination of the diseases from all livestock in the United States. One of the most serious challenges to achieving this goal is the widespread and growing occurrence of feral swine. Feral swine can harbor and transmit these diseases, and in some areas may serve as the most important wildlife host. A state's status with the US Department of Agriculture, in terms of being considered brucellosis-free, may depend partly on whether disease is found in the population of free roaming swine. Feral and wild swine are deemed unprotected animals in the wild and for the purposes of the proposed rules would be considered harmful when held in captivity. Any swine that has existed in the wild for seven days can be considered a harmful wild animal.
This rule is designed to reduce the occurrence of wolf-dog hybrids escaping into the wild or posing a threat to human health. Wolves which share genetic material with domestic dogs have been documented in packs of wild wolves on three occasions in Wisconsin and alone in significantly more instances. Experience has shown that wolves which have some domestic heritage are more likely than wild wolves to interact with humans and domestic animals in negative ways. These actions, including depredation of domestic animals, pose a threat to the management of wild wolves and a threat to the genetics of wild wolves. Wolf-dog hybrids are responsible for fatal attacks on humans in neighboring states and have attacked people in Wisconsin. Improper care and containment of wolf-dog crosses can be a significant risk of physical harm to people.
This rule is designed to reduce the likelihood of mute swans escaping from captivity and becoming established in the wild where they compete with native waterfowl, including trumpeter swans, for breeding, feeding, and living space. Mute swans have shown that they are extremely well adapted to surviving in the wild in Wisconsin. Existing rules already require that swans which are not pinioned and neutered must be housed in covered enclosures. These regulations are not currently in effect but are restored in this rule by eliminating the need to cross-reference federal regulations. A new provision of this proposal is that mute swan escapes shall be reported to the department within 24 hours of becoming aware of the escape.
Analysis and supporting documents used to determine effect on small business
These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector or small businesses. These rules will allow the possession, propagation, and sale of mute swans in a manner which is identical to regulations which were in effect prior to a change to the Code of Federal Regulations which invalidated state regulations by eliminating a cross reference in code language.
The possession and sale of wolf-dog hybrids would continue to be allowed under this rule proposal with certain conditions. Propagation would not be allowed under this proposal. Propagation for sale in Wisconsin is believed to be a limited activity that would have limited to no effect on small businesses. Likewise, the possession and propagation of feral swine would continue to be allowed by certain people for the purposes of meat production. People who possess wild or feral swine for other purposes are not believed to be benefitting economically and there would be no business effect.
Small Business Impact
In most cases these rules are applicable to individual animal owners. Business owners who posses wild or feral hogs, mute swans, or wolf-dog hybrids would be subject to compliance standards through a requirement that enclosures be of sufficient construction to contain those species. For wolf-dog hybrid owners, compliance with pen standards would not be required until 2014. Permanent marking of wild or feral swine and wolf-dog hybrids would be required. Wolf-dog hybrids would need to be sexually neutered. Annual reporting of animals acquired and sold or which die would be required. Additionally, business owners would be required to report events of animal escape to the department within 24 hours of becoming aware of the escape.
Pursuant to s.
227.114, Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses.
Environmental Impact
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
Assumptions used in arriving at fiscal estimate
This proposed rule making will require a license issued under the authority of Ch.
169, Stats., Captive Wildlife, for the possession of mute swans, wolf-dog hybrids and feral or wild swine.
The process used by the department to collect fees, store licensing information, reports, and issue renewal notices is already established. The department anticipates that most individuals would apply for a Class B Captive Wild Animal Farm License (CWAFL). The fee for a CWAFL is $50 the first year and $25 for annual renewal. The higher cost during the first year is to compensate for site inspections that may be conducted by department staff during initial licensing.
Only people who possess feral or wild swine prior to the effective date of this rule and for the purpose of meat production may be licensed. It is anticipated that as few as two facilities may be eligible. Prior to January 1, 2003 the department had authority to require game farm or exhibiting licenses for people who possess mute swans. The maximum number of licensed facilities with mute swans was 8. Because of the limited number of these licenses to be issued and the department's ability to generate approximately $500 to recover the cost of inspections, no fiscal impact is anticipated by requiring licenses for these species.
The number of people who currently possess wolf-dog hybrids and will require a license under this rulemaking is difficult to estimate; however, it is possible that Wisconsin's numbers may be comparable to Michigan, which already requires similar licensing under its Wolf-Dog Cross Act and licensed a total of 29 individuals in 2007 to possess wolf-dog hybrids.
One-Time Costs/Revenues
It will take a wildlife manager approximately 2 hours to inspect a facility multiplied by the average value of salary and fringe of $32. Therefore, assuming that Wisconsin permitting activity will be comparable to Michigan, total one-time costs to permit new facilities will be $1,856 ($64 x 29 permittees) and total one-time revenues for new permittees will be $1,450 ($50 x 29 permittees). While department staff are learning how to permit these new facilities, it is possible that multiple site visits may be needed in an effort to work cooperatively with some permittees to ensure their facilities are compliant, which would result in higher costs. It is also possible that the number of permittees may be higher in Wisconsin than Michigan.
Ongoing Costs/Revenues
The effort required to license new facilities for these species will be greatest upon initial implementation. Therefore, in subsequent years, no significant costs are anticipated whereas ongoing revenues are estimated to be $725 ($25 annual renewal fee x 29 permittees).
State fiscal effect
Increase costs — that may be possible to absorb within the agency's budget.
Local government fiscal effect
None.
Fund sources affected
SEG.
Affected Ch.
20 appropriations
Agency Contact Person
Scott Loomans
101 South Webster St.
PO Box 7921
Madison, WI 53707-7921
(608) 267-2452
Notice of Hearings
Natural Resources
Fish, Game, etc., Chs.
NR 1—
NOTICE IS HEREBY GIVEN that pursuant to ss.
29.014 and
227.11, Stats., the Department of Natural Resources will hold public hearings on revisions to Chapter
NR 10, Wis. Adm. Code relating to deer management unit population goals.
Hearing Information
The hearings will be held beginning at 7:00 p.m. on the following dates and locations:
August 13, Thursday
West Bend Public Agency Center, Room 1113 A and B,
333 E. Washington St., West Bend, 53095
August 18, Tuesday
Wausau Best Western Midway Hotel,
2901 Hummingbird Road, Wausau, 54401
August 18, Tuesday
Rhinelander's James Williams Middle School,
915 Acacia Lane, Rhinelander, 54501
August 19, Wednesday
La Crosse State Office Bldg., Basement Conference Rooms, 3550 Mormon Coulee Road, La Crosse, 54601
August 19, Wednesday
Northeast Wis. Technical College, Room CB 213 A and B, 2740 W. Mason Street, Green Bay, 54307
August 27, Thursday
Northern Great Lakes Visitor Center,
29270 County Highway G, Ashland, 54806
August 31, Monday
Dunn County Fish and Game Association Clubhouse,
1600 Pine Ave E., Menomonie, 54751
The hearing will be preceded by a public hearing on Board Order WM-21-07 relating to regulating feral or wild swine, wolf-dog hybrids and mute swans as captive wild animals. The hearing on WM-21-07 begins at 6:00 p.m. at the same location.
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 Scott Loomans at (608) 267-2452 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rules 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. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until August 31, 2009. 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. Loomans.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Related statute or rule
Deer unit boundaries and goals are reviewed every 3 years according to s.
NR 10.104 (3), Wis. Adm. Code and Voigt case stipulations (Chippewa treaty rights).
Plain language rule analysis
There are currently 131 deer management units with individual overwinter populations goals and a statewide over winter population goal of approximately 737,000 deer. Over winter population goals and DMUs serve as the foundation for managing the deer herd and determining deer hunting season structures. All goals referred to in this rule are the over winter deer population goal for a DMU. The hunting season population will generally be substantially larger than the over winter population goal.
The Department is proposing raising deer population goals in 13 management units and lowering the goal in three.
These changes are recommended to provide hunters with more deer hunting opportunities in instances where goals are proposed for increases and to alleviate agricultural damage in the instances where the goals have been recommended for a decrease. The department does not anticipate significant ecological, agricultural or forestry impacts because of the proposed goal increases. However, there is a concern that a higher goal with low hunter densities will mean continuous herd control seasons.
Deer
Management Unit
|
Current Goal Density
|
Proposed Goal Density
|
3
|
16
|
15
|
6
|
12
|
15
|
14
|
14
|
18
|
49A
|
25
|
20
|
57
|
22
|
25
|
59B
|
15
|
20
|
59M
|
10
|
15
|
60A
|
20
|
25
|
60B
|
20
|
25
|
60M
|
10
|
15
|
64
|
20
|
25
|
64M
|
10
|
15
|
68B
|
30
|
25
|
77C
|
15
|
20
|
77M
|
10
|
15
|
80B
|
20
|
25
|
Comparison with federal regulations
Provided state rules and statutes do not relieve individuals from the restrictions, requirements and conditions of federal statutes and regulations. Regulation of hunting and trapping of native species has been delegated to state fish and wildlife agencies. Additionally, none of the proposed rules exceed the authorities granted the states in
50 CFR 10.
Comparison with rules in adjacent states
All of Wisconsin's neighboring states have established management units for the purpose of managing deer populations. By using units with identifiable boundaries, deer populations can be monitored and kept at various population levels to more effectively control the deer herd and to address regional differences in habitat, population (human and deer) and to reduce conflict with other land uses such as residential, agricultural or forested.
Summary of factual data and analytical methodologies
The Department has evaluated the need for deer population goal reviews based on the following criteria; 1) Carrying capacity as determined by unit population responses to habitat quality and historical records of winter severity, 2) Hunter success in harvesting and seeing deer and public deer viewing opportunities, 3) Ecological and economic impacts of deer browsing, 4) Disease transmission, 5) Concern for deer vehicle collisions, 6) Chippewa treaty harvest, 7) Hunter access to land in a deer management unit, 8) Ability to keep the deer herd in a deer management unit at goal, 9) Tolerable levels of deer damage to crops. In addition, an Environmental Assessment was prepared in 1995. Copies of Deer Population Goals and Harvest Management Environmental Assessment are available from the department upon request.
Analysis and supporting documents used to determine effect on small business
These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector or small businesses.
These rules are applicable to individual sportspersons and impose no compliance or reporting requirements for small businesses, nor are any design or operational standards contained in the rule.
Small Business Impact
Pursuant to s.
227.114, Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses.
Environmental Impact
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
Assumptions used in arriving at fiscal estimate
A potential fiscal impact of increasing deer population goals is an increase of agricultural damage and associated claims and abatement costs. Fiscal impacts are not anticipated as a result of this rulemaking, however, because the proposed increases are minor, five or fewer deer per square mile of deer range. Some units currently have deer populations which are actually higher than the proposed goals.
State fiscal effect
None.
Local government fiscal effect
None.
Long-range fiscal implications
None.
Agency Contact Information
Keith Warnke
101 S. Webster Street
PO Box 7921
Madison, WI 53707-7921
(608) 264-6023
or
Scott Loomans
101 S. Webster Street
PO Box 7921
Madison, WI 53707-7921
(608) 267-2452
