2.   Poultry farmers.
  Small poultry farmers have benefited from the elimination of the turkey commingling prohibitions in the proposed rule. The department has already issued a waiver from this rule prohibition so any cost savings from this rule modification have already been realized.
3.   Farm-raised deer keepers (FRDKs) with herds enrolled in the CWD herd status program.
  CWD test samples (State changes). Farm-raised deer keepers may realize a significant cost savings if they, their employees or their immediate family members choose to complete department-approved training and become qualified by the department to collect CWD test samples.
  The qualification will allow the FRDK (or his/her employee or immediate family member) to collect CWD test samples rather than hiring a veterinarian to do so at an estimated $75 per deer (depending on the number of deer tested at one time, this cost could be lower). This change is significant as 100 percent of all farm-raised deer aged 12 months or older enrolled in a CWD herd status program must be tested for CWD upon death, including those sent to slaughter. In addition, for non-enrolled herds for deer 16 months of age or older, 100 percent that are killed intentionally or die by accidental death or natural causes must be tested, 25 percent sent to slaughter must be tested and 50 percent that are intentionally killed while on a hunting preserve must be tested. Cost savings for non-enrolled herds could also be significant.
  The training for this qualification will first be provided in the summer of 2013 (before promulgation of this rule) and will be free of charge. The proposed rule will require a nonrefundable application fee of $50 every five years per applicant so the department can recover some of the costs in the future of providing the CWD test training and qualification program.
  Beginning June 30, 2018, veterinarians will also be required to take CWD test sample training to refresh their sampling techniques and to become qualified collectors. This will be a new cost to veterinarians who choose to collect CWD test samples.
  Two forms of identification (Federal changes). Keepers of farm-raised deer enrolled in the CWD herd status program will have to apply two forms of identification to each deer that is 12 months of age or older and provide a complete herd inventory every three years by a veterinarian or department-authorized agent.
  Participation in the CWD herd status program is voluntary. There are approximately 330 farm-raised deer keepers with 14,225 deer (elk, red deer, white-tailed deer, fallow, sika, reindeer, muntjac, moose, and mule deer) enrolled in the CWD herd status program in Wisconsin.
  Approximately 50 of those FRDKs currently move their deer interstate and likely already have two identifications attached to each deer. These individuals also have their herds certified as tuberculosis-free since it is a requirement to move deer. A tuberculosis-free herd must be re-certified every three years by testing deer 12 months of age or older by a veterinarian. The newly required complete herd inventory can coincide with the tuberculosis testing every three years but must be done for all deer in the herd (including deer under 12 months of age). Because the herd inventory includes all deer (including deer under 12 months of age) and the tuberculosis testing includes only deer over 12 months of age, there will be an increase in cost to FRDKs having young deer under 12 months of age. The cost for a veterinarian to provide tuberculosis testing is approximately $100 to $200 per hour. The number of additional hours needed and costs will vary depending on the number of deer under 12 months of age that will need to be inventoried in each herd. It is unknown how many herds will have deer under 12 months of age.
  Of the remaining 280 FRDKs, approximately 190 are enrolled in the CWD herd status program and many move their deer intra-state. Approximately 150 of these FRDKs have their herds certified as tuberculosis-free. These FRDKs will have the same fiscal costs as those described in the previous paragraph. The FRDKs that do not have herds certified as tuberculosis-free may incur the fiscal costs described in the following paragraphs.
  Approximately 90 of the 280 FRDKs who don't move interstate are enrolled in the CWD herd status program but do not move live deer, do not have their herds certified as tuberculosis-free, and likely do not have two identifications attached to their adult deer. These FRDKs may choose to stop participation in the CWD herd status program. However, they will then need to comply with fencing requirements specified by the Department of Natural Resources under s. NR 16.45 (2), Wis. Admin. Code. The DNR rule requires white-tailed deer farms with perimeter fences less than 80 acres to be either enclosed by a double or solid fence (unless the deer farm is enrolled in the CWD herd status program).
  The rules will have a greater fiscal impact on these FRDKs as they probably do not currently have facilities to catch deer in order to apply the required identification or to complete a physical herd inventory every three years. Depending on the animal, each deer may need to be chemically immobilized (tranquilized) in order to conduct the inventory, causing a greater risk of death, injury, and cost to the owner.
  It is important to note that if these rule modifications are not promulgated to comply with federal regulations, Wisconsin may jeopardize its approval from USDA on implementing its herd certification program which allows keepers of farm-raised deer enrolled in the CWD herd status program to move deer interstate. No USDA approval means there is no interstate movement of deer.
4.   Fish farmers.
  Type 1 and 2 fish farmers may realize a cost savings as they will no longer have to have a veterinarian prepare a valid health certificate for fish or fish eggs moving from any of the registered fish farms at the same location. It is unknown how many type 1 and 2 fish farms move fish or fish eggs among the registered fish farms at the same location. Therefore, any savings are indeterminate.
5.   Owners of rodeo and exhibition cattle.
  Owners of rodeo and exhibition cattle will have to apply eartags to their cattle to improve traceability. However, because these eartags are free, any fiscal impact should be minimal.
6.   Animal markets.
  Owners of Wisconsin animal markets selling equine may experience a slight decrease in costs as federal rules now require that horses imported to markets have a certificate of veterinary inspection (CVI) before entering the market. Current state rules allow horses to be imported to markets without a CVI if shipped directly to slaughter within 10 days of arrival but if the horse then leaves the market other than for slaughter or is commingled with other equine, the market owner must then have a Wisconsin certified veterinarian issue a CVI for that horse. Under the proposed rule, the equines would come to market with a CVI. It is unknown how many markets this provision may affect and any cost savings are indeterminate.
Agency Contact Person
Loretta Slauson
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4890
E-Mail: loretta.slauson@wisconsin.gov
DOA 2049 (R 07/2011)
Fiscal Estimate & Economic Impact Analysis
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
Ch. ATCP 10, animal diseases and movement and ch. ATCP 12, animal markets, dealers and truckers.
Animal Disease and Movement and Animal Markets, Truckers and Dealers.
Fund Sources Affected
Chapter 20 , Stats. Appropriations Affected
s. 20.115 (2) (ha), Stats.
Fiscal Effect of Implementing the Rule
No Fiscal Effect
X Indeterminate
X Increase Existing Revenues
Decrease Existing Revenues
Increase Costs
X Could Absorb Within Agency's Budget
Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy
Local Government Units
X Specific Businesses/Sectors
Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million?
Yes X No
Policy Problem Addressed by the Rule
The majority of the proposed rule changes are technical or provide for flexibility, clarity and consistency. Significant proposed rule changes are being made because:
The current rule is inconsistent with federal regulations relating to animal traceability and the CWD Herd Certification Program (HCP). Therefore, state rules must be modified to allow Wisconsin livestock to move interstate.
The current rule is inconsistent with Wisconsin Statutes that were modified in the last biennium. Therefore, the rules must be modified to align and not conflict with state law.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The majority of these rule modifications are technical and have no fiscal effect or have already been implemented by the division due to prior changes in state law.
Many of the rule modifications will ease program requirements and may reduce costs to small business. The entities that will be affected by these changes include:
1. Farm-raised deer keepers.
2. Individuals that become qualified (as registered farm-raised deer keepers, or family members or employees of registered farm-raised deer keepers) by the department to collect CWD test samples.
3. Wisconsin importers of vicunas and swine.
4. Poultry farmers.
5. Fish farmers.
6. Owners of rodeo and exhibition cattle.
7. Animal markets.
The rule modifications that may have a greater economic impact on small business are changes required to align state rules with federal USDA regulations relating to farm-raised deer enrolled in the CWD herd status program.
This rule will not have any significant negative economic or fiscal impact on business sectors, public utility rate payers, local governmental units, or the state's economy as a whole and does not create additional requirements that local governments must follow.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The majority of these rule modifications are technical or ease program requirements. There are no alternatives suggested for these changes.
The changes made as a result of changes in federal regulations will allow animals from Wisconsin to move interstate. Preventing and controlling animal disease is the cornerstone of protecting American animal agriculture. While ranchers and farmers work hard to protect their animals and their livelihoods, there is never a guarantee that their animals will be spared from disease. Traceability does not prevent disease, but knowing where diseased and at-risk animals are, where they have been, and when, is indispensable in emergency response and in ongoing disease control and eradication programs.
If the rule is not modified to align with federal regulations, state rules will conflict with federal regulations causing confusion for individuals wanting to move livestock interstate, and preventing that movement. Further, Wisconsin may jeopardize its approval from USDA to implement its Herd Certification Program (HCP) for cervids, which allows keepers of farm-raised deer enrolled in the CWD herd status program to move deer interstate.
Long Range Implications of Implementing the Rule
Overall, this rule continues to provide for disease control and prevention for the benefit of the entire livestock and aquaculture industry. In many cases, this rule will improve flexibility and reduce costs for individual businesses, including small businesses.
Compare With Approaches Being Used by Federal Government
The United States Department of Agriculture (USDA) administers federal regulations related to the interstate movement of animals, particularly with respect to certain major diseases. States regulate intrastate movement and imports into the state.
Federal CWD HCP requirements include individual animal IDs, regular inventories, and testing of all cervids over 12 months of age that die for any reason. Interstate movement of cervids will be dependent on the home state's participation in the program, maintaining compliance with program requirements, and achieving herd certification status.
Federal traceability requirements establish minimum national official identification and documentation for the traceability of livestock moving interstate. These new federal regulations specify approved forms of official identification and documentation for each species.
The proposed rule modifications will align state rules relating to CWD and identification requirements for traceability with approaches used by the federal government. These changes will allow for the continued interstate movement of farm-raised deer and other livestock.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan, and Minnesota)
Surrounding state animal health programs are broadly comparable to those in Wisconsin. Programs for historically important diseases, such as tuberculosis, brucellosis and CWD, tend to be fairly similar between states and are based on well-established federal standards.
States may apply to become an approved State HCP if they meet (or exceed) national program requirements. Cervid owners can enroll and participate in their state's approved CWD HCP. Interstate movement of animals will be dependent on a deer owner's home state's participation in the program, maintaining compliance with program requirements, and achieving herd certification status. Wisconsin and Minnesota have CWD HCPs approved by the federal Animal and Plant Health Inspection Service (APHIS). Illinois, Iowa, and Michigan have conditional approval. Therefore, all neighboring states are moving to implement federal requirements and should ultimately have similar rules.
In addition to meeting federal CWD HCP requirements for farm-raised deer to move interstate, livestock, including farm-raised deer, are also required to have federally approved forms of official identification to move interstate. Minnesota, Illinois, Iowa, and Michigan must meet the federal traceability identification requirements in order to move livestock interstate. All these neighboring states are in the process of implementing the federal identification requirements and should ultimately have similar rules.
Comments Received in Response to Web Posting and DATCP Response
No comments were received in response either to the posting on the DATCP external website or the statewide administrative rules website.
Notice of Hearing
Agriculture, Trade and Consumer Protection
(DATCP Docket # 13-R-02)
NOTICE IS HEREBY GIVEN THAT the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) will hold a public hearing on a proposed rule to repeal s. ATCP 17.01 (19) and ch. ATCP 53; repeal and recreate ch. ATCP 21, Appendix A, amend ss. ATCP 17.01 (9), 21.21 (1) (c) 1., 60.08 (3) and (6), 60.01 (23m), 70.03 (7) (b) 1., 80.01 (7) (c), 80.01 (27m), 80.24 (3) (a) 2., and 80.24 (3) (b); and, create s. ATCP 80.24 (3) (a) 3., relating to technical changes to Livestock Premises Registration; Plant Inspection and Pest Control; Agricultural Enterprise Areas; Dairy Farms; Food Processing Plants; Dairy Plants.
Hearing Information
Date:   Wednesday, September 11, 2013
10:00 a.m. to 12:00 p.m.
  Boardroom, Room 106
  Department of Agriculture, Trade and
  Consumer Protection
  2811 Agriculture Drive
  Madison, WI 53718
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by August 30, 2013, by writing to Kelly Monaghan, Office of the Secretary, P.O. Box 8911, Madison, WI 53708-8911; or by emailing kelly.monaghan@wisconsin.gov; or by telephone at (608) 224-5033. Alternatively, you may contact the DATCP TDD at (608) 224-5058. The hearing facility is handicap accessible.
Appearances at the Hearings, Copies of Proposed Rule, and Submittal of Written Comments
DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearing, the hearing record will remain open until September 24, 2013, for additional written comments. Comments may be sent to the Office of the Secretary at the address below, or to kelly.monaghan@wisconsin.gov, or to http://adminrules.wisconsin.gov.
Kelly Monaghan
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4890
You can obtain a free copy of this hearing draft rule and related documents including the economic impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Office of the Secretary, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-5033 or by emailing kelly.monaghan@wisconsin.gov. Copies will also be available at the hearing. To view the hearing draft rule online, go to: http://adminrules.wisconsin.gov.
Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator, Keeley Moll, at the address above, or by email to keeley.moll@wisconsin.gov, or by telephone at (608) 224-5039.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This rule makes minor technical changes to a number of current rules administered by the department of agriculture, trade and consumer protection (“DATCP").
Statutes interpreted
Statutes Interpreted: ss. 94.01 (1), 94.81 (1m) and (2m), 95.51, 97.20, 97.22, and 97.29, Stats.
Statutory authority
Statutory Authority: ss. 93.07 (1), 94.01 (1), 94.81 (2m), 95.51 (7), 97.20 (4), 97.22 (8), and 97.29 (5), Stats.
Explanation of statutory authority
DATCP has general authority, under s. 93.07 (1), Stats., to adopt rules to interpret laws under its jurisdiction. It also has specific rulemaking authority related to various matters addressed by this rule (see above). This rule makes minor changes to a number of different rules administered by DATCP. The changes are adopted under essentially the same authority used to adopt the original rules.
Related rules or statutes
This rule is not substantially affected by statutes or rules other than those identified in this rule.
Plain language analysis
This rule makes minor or technical changes to a number of current DATCP rules. This rule does all of the following:
Livestock premises registration
This rule amends current DATCP rule ch. ATCP 17, relating to Livestock Premises Registration. In s. ATCP 17.01, certain terms used in the chapter are defined. In that section, there are currently two definitions for “captive game birds," at s. ATCP 17.01 (9) and (19). This rule amends s. ATCP 17.01 (9) by amending the current definition to conform to the definition for “captive game bird" now found in s. ATCP 17.01 (19), and repealing the definition now found in s. ATCP 17.01 (19).
Plant inspection and pest control
This rule makes two minor technical changes in ch. ATCP 21. The current rule defines, in s. ATCP 21.21 (1) (c) 1., an “infested area" by listing the states known to be infected at the time the current rule was adopted. The proposed amendment adds the states of North Carolina, Virginia, Ohio, and Pennsylvania to the list of states included in that definition. Each of those states now has quarantined counties based on a detection of TCD (Thousand Cankers Disease).
Appendix A to ch. ATCP 21 is being repealed and replaced because Hemlock Woolly Adelgid has been detected in additional counties in other states since the last time ch. ATCP 21 was updated. The proposed language identifies those new counties. In some states, the status has changed so that the entire state is now considered generally infested and the state as a whole is now listed. Because this pest is not federally regulated, DATCP cannot reference the Code of Federal Regulations to identify infested areas, but has to identify them specifically in our rule.
Agricultural enterprise areas
This rule repeals ch. ATCP 53 in its entirety for the following reasons: Section 91.84, Stats., authorizes the department to designate agricultural enterprise areas (AEAs) for the Farmland Preservation Program. Section 91.84 (2), Stats., previously required that designation to be made through the emergency rulemaking process. For two years, the department used emergency rulemaking to designate AEAs in ch. ATCP 53. In 2011 Wis. Act 253, s. 91.84 (2), Stats., on emergency rulemaking was repealed, sub. (2m) was created (requiring all previous designations by rule to remain in effect only through December 31, 2012), and other provisions of s. 91.84, Stats., were amended to authorize the department's secretary to designate AEAs by order. Since, as of January 1, 2013, ch. ATCP 53 is no longer in effect, this proposed rule repeals that chapter in its entirety.
Dairy farms
This rule makes the following technical changes to ch. ATCP 60 relating to dairy farms. In s. ATCP 60.08 (3) and (6), the references to “NR 811 or 812" are changed to “NR 810, 811, or 812" due to the splitting of the former ch. NR 811 into chs. NR 810 and 811. This rule also amends the reference in s. ATCP 60.01 (23m) to the “2005 revision" of the Pasteurized Milk Ordinance (the “PMO") to refer to the “2011 revision" of the PMO, since the PMO is updated every two years.
Food processing plants
This rule amends ch. ATCP 70 by making the following technical change. Section ATCP 70.03 (7) (b) 1. currently exempts a restaurant, which holds a permit under s. 254.64, Stats., from the requirement to obtain a food processing plant license if the restaurant “does not process food for wholesale distribution, and is not engaged in canning or production of processed fish." This rule would amend that language to read “does not process food for wholesale distribution, and is not engaged in canning of food products or in the production of processed fish." The proposed change clarifies that “canning" applies to all canned foods and not just processed fish.
Dairy plants
This rule amends ch. ATCP 80 relating to dairy plants as follows. Section ATCP 80.01 (7) (c) defines a “dairy product" as a “commodity in which milk or any milk product or by-product is a principal ingredient." This rule amends this section by adding, after “ingredient," the following: “except prepared foods made in a licensed food processing plant for which the federal food and drug administration has not prescribed a standard of identity under title 21 of the code of federal regulations and which contain dairy products manufactured at a dairy plant from ingredients that are pasteurized or are produced under other processes that eliminate or reduce to an acceptable level the food safety hazards associated with the dairy products, including aseptically processed foods, high acid foods, heat treated foods, aged foods, cold pack foods, and similarly processed foods." The proposed amendment incorporates new statutory language in 2011 Wisconsin Act 195, which narrows the definition of a dairy product in s. 97.20 (2) (e) 5., Stats.
This rule amends s. ATCP 80.01 (27m) by changing the reference to the “2005 revision" of the PMO to the “2011 revision" of the PMO.
This rule amends s. ATCP 80.24 (3) (a) 2. by deleting “dried whey and nonfat dry milk." This rule amends s. ATCP 80.24 (3) (a) by adding a new section, s. ATCP 80.24 (3) (a) 3., to read: “3. 10,000 per gram for nonfat dry milk, dried whey and dry milk products." This rule amends s. ATCP 80.24 (3) (b) by deleting “other than cultured grade A dairy products" from that section. These changes reflect changes in the most recent PMO.
Standards incorporated by reference
Pursuant to s. 227.21, Stats., DATCP has requested permission from the Department of Justice to incorporate the updated technical standards incorporated by reference in this rule. Copies of the updated standards will be kept on file with DATCP and the Legislative Reference Bureau.
Summary of, and comparison with existing or proposed federal statutes and regulations
The vast majority of dairy farms in Wisconsin have Grade “A" permits, which means that their milk, or pasteurized milk and certain other dairy products made from the farm's milk, can be shipped across state and international boundaries. Milk moving in this manner, referred to as Grade “A" milk, must be produced, transported, and processed in accordance with the Pasteurized Milk Ordinance (PMO). The PMO is a document written by the US Food and Drug Administration and regulators from the 50 states and Puerto Rico, which participate in the biennial National Conference on Interstate Milk Shipments, and it is periodically revised. State regulations governing the production and processing of Grade “A" milk must be at least as stringent, and consistent with, the PMO. Some states adopt the PMO by reference; Wisconsin regularly revises ch. ATCP 60 (Dairy Farms), ch. ATCP 82 (Milk Haulers), and ch. ATCP 80 (Dairy Plants) to ensure the necessary stringency and consistency with the current PMO.
Comparison with rules in adjacent states
The housekeeping and technical rules changes proposed in this rule will not create any disparities between Wisconsin and the adjacent states.
Summary of factual data and analytical methodologies
This rule does not depend on any complex analysis of data. This rule merely makes minor or technical changes to current rules.
Analysis and supporting documents used to determine effect on small business
Because this bill makes minor housekeeping technical changes, no significant analysis or documentation was required to determine that the proposed rule will have no impact on small businesses.
Effect on Business
This rule will not have any impact on small business or other business. This rule makes minor technical “housekeeping" changes that will not have any impact on business standards, costs or operations. See the complete initial regulatory flexibility analysis that accompanies this rule.
Environmental Impact
This “housekeeping" rule will have no significant impact on the environment.
Agency Contact Person
Kelly Monaghan
Department of Agriculture, Trade and Consumer Protection
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.