Clearinghouse Rule No. 18-085 November 11, 2019
PROPOSED ORDER
OF THE STATE OF WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
____________________________________________________________________________
The Wisconsin department of agriculture, trade and consumer protection proposes the following permanent rule to repeal ATCP 10.20 (1) (b), 10.20 (2) (b), 10.21 (2) (b) 5, 10.22 (10), 10.31 (2) (a) 3., 10.36 (4) (a) and (b) and Note, and (e) and Note, 10.40 (1) (a) 1. and 2., 10.40 (1) (c) Note, 10.40 (1) (d) (intro.), 10.40 (1) (d) 2. Note and (g), 10.40 (2) (e), 10.40 (3) (c), 10.40 (4) (b) 3. and (d), 10.40 (5), 10.40 (7) (b) 2 Note, 10.40 (8), 10.41 (4), 10.45 (2) (c), 10.46 (1m), 10.46 (7) (a) 1. c. Note, 10.47 (4m) Note, 10.53 (4) (b) 1. and 2., 10.53 (7) (b) Note, 10.54 (1) (d) and (e), 10.55 (3) (d) Note, 10.56 (3) (d) 2. Note, 10.73 (3) Note, 10.87 (1) (c) 1. and 2., 10.90, 12.05 (1) (a) Note, 12.05 (1) (b) 2. Note, 12.05 (2) (b) 2. first Note; to renumber ATCP 10.20 (1) (a), 10.20 (2) (a), 10.52 (7); to renumber and amend 10.31 (1) (a), and 10.89 (2) (title) (intro.) and (a) to (c) and (4) (title) (intro.); to consolidate, renumber and amend ATCP 10.40 (2) (a) and (b) (intro.), 10.40 (3) (a) and (b) (intro.); to amend ATCP 10.01 (5), (60) to (62), (90), and (105) (d) and Note, 10.03 (3), 10.04 (1) (title), 10.04 (1) (e), 10.05 (1) (intro.) and (2) (a) 3., 10.055 (3) Note, 10.06 (1) (c) 10., 10.06 (3) (a) Note, (4) (a), and (6) (a), (b) and (c) Note, 10.07 (4) (a) 1., 10.08 (2) (b) Note, (r) Note, and (s) Note, 10.21 (2) (a) (intro.) and 1., 10.22 (1) (b) 1., 10.22 (6) (c) (intro.) and (d) (intro.), 10.26 (4), 10.291 (title), and (1) (intro.), 10.291 (2) (intro.) and (a) 2., 10.291 (2) (c) Note, 10.291 (3), (4) (a) and (5), 10.30 (1) (a) 3. and (b) 3., 10.30 (2) (b) 3., 10.31 (1) (intro.), 10.31 (1) (b), 10.32 (2) (title), (a) and (b), 10.35 (1) (b) 3. and 4., 10.36 (4) (intro.), 10.36 (5) (b) (intro.), 10.40 (title) and (1) (title), (intro.) and (a), 10.40 (1) (b) and (c), 10.40 (1) (d) 1., 10.40 (2) (b) 4. Note, 10.40 (2) (c) (intro.), 10.40 (7) (a) and (b) (intro.) and 1., 10.41 (1), 10.41 (5) (a) and (d) 1., 10.41 (7), 10.42 (1) (a) 1. and 2., 10.46 (1) (a), (d) and (f), 10.46 (2) (c) Note, (3) and (4) (b) 1., 10.46 (5) (b) 2. a., (c) 1., (d), and (e), 10.46 (6) (intro.), (e) and (f), 10.46 (7) (a) 1. (intro.) and b., 10.46 (7) (a) 2. and 3., 10.46 (7) (b), (c) and (d), 10.46 (10) (a) 1. and 6., (am) 1., and (c) 2., 10.46 (11) (c) and (d) 1., 10.46 (12) (d) and Note, (13) (b) and (14) (b), 10.47 (2) (a) and (b), (3) (b) 5., (4) (intro.) and (4m), 10.47 (8) (a), 10.51 (2) (c), 10.52 (3) (c) (intro), 1. and 1m. and 2. a. and b. and (d), 10.52 (4) (b), 10.52 (7m) and (8) (a) 3., 10.53 (2) (d) 4. and (f), 10.53 (4) (a) and (b) (intro.), 10.53 (4) (g) Note and (h), 10.53 (5) (a) 4. and (b) 2., 10.53 (5m) (b) Note, 10.53 (8) (d) Note, 10.53 (11) (c) 1., 10.54 (1) (am) and (c) (intro.), 10.54 (2) (a) and (b) (intro.), 10.55 (1) Note, and (3) (d), 10.55 (3) (e) 1., 10.56 (1) (a) 2. (intro.) and 3., 10.56 (2) (c) and (3) (b), 10.56 (4) (b), 10.61 (5m) (b) and (c), 10.61 (6) (intro.), 10.61 (6m) (b) 6. and 7., 10.61 (7) (f), 10.61 (10) (a) 5., (c) 5., and (13) (b), 10.62 (1) (a) 3., (2) (e) and Note, 10.63 (1) (b) and Note, 10.64 (1) and Note, and (3) (a), 10.645 (intro.) and (2) Note, 10.65 (1), 10.65 (4) (a) (intro.), and 4. and (b) (intro.), 3. and Note, and (c) (intro.), 2. and Note, and (d) 3. Note (intro.), 10.655 (1) (intro.), 10.68 (2) and (2m), 10.73 (2) to (3), 10.76 (2) (b), (c) (intro.) and (d), 10.80 (3) (a) and (b), 10.82 (3) (a) Note and (b), 10.84 (4) (b) 4., 10.86 (3) (b), 10.87 (1) (a) and (c), 10.87 (2) (b) 2., 3. and 5., 10.89 (3), 10.91 (2), 10.92 (3), (4), (5) (intro.) and (b), (11), and (13), Ch. ATCP 12 second Note, 12.01 (1g) and (25), 12.02 (8) (g), 12.02 (11) (c), 12.03 (2) (d), 12.04 (9) (a), 12.05 (1) (b) 1., 12.05 (2) (a) and (b), 12.05 (5) (a) and (b), 12.06 (1m) (f) and (h), 12.06 (2), 12.08 (4), (5) (intro.) and (b), (6), (8) and (26); to repeal and recreate ATCP 10.11, 10.13, 10.28, 10.40 (1) (d) 2., 10.42 (1) (b), 10.46 (11) (d) 2., 10.48, 10.50, 10.61 (7) (b), Ch. ATCP 10, Appendices A and B; and to create ATCP 10.01 (112m), 10.025, 10.03 (7), 10.04 (1) (am), 10.045 (3), 10.052, 10.055 (5) and (6), 10.07 (4) (a) 5. and (bn), 10.07 (5), 10.14 (2) (a) 3., 10.21 (2) (c) Note, 10.291 (2) (a) 3., 10.31 (1) (a) 1. and 2., 10.31 (3) (c) Note, 10.32 (2) (b) 3., 10.40 (2) (b), 10.40 (3) (b), 10.46 (1) (g) and (h), 10.46 (10) (cm), 10.46 (11) (e) and (f), 10.46 (12) (a) 3., 10.47 (8) (c), 10.49 (3) (a) 3., 10.52 (1m) (c) and (d), 10.53 (7) (a) 8., 10.53 (7) (c) and Note, 10.53 (8) (d), 10.54 (3), 10.56 (1) (d) Note, 10.56 (3) (e), 10.61 (6) (d) Note, 10.74 (3) (a) 3., 10.87 (1) (d), 10.89 (1) (a) 3. and (2) (b) and (4) (b), ATCP 10.92 (19), (20), and Note, 12.01 (14), 12.02 (8) (k), (L), and (m), 12.03 (9) (j) and (k), 12.06 (1m) (j) and (k), 12.08 (28), relating to animal disease movement and animal markets, dealers and truckers, and affecting small businesses. ______________________________________________________________________________
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
Wis. Admin. Code ch. ATCP 10 specifies requirements relating to animal diseases and movement. Wis. Admin. Code ch. ATCP 12 specifies requirements for animal truckers, markets, and dealers. This proposed rule package will modify current animal health rules to provide for clarity and consistency. The hearing draft associated with this rule package proposed increasing farm-raised deer enhanced fencing requirements and restricting movement based on CWD affected county status. The department has determined to remove changes to farm-raised deer enhanced fencing requirements and movement restrictions from the final rule draft.
The hearing draft associated with this rule package proposed requirements for brucellosis canis and heartworm testing and treatment for dogs imported into Wisconsin. The department has determined to remove these changes from the final rule draft.
Statutes Interpreted
Statutes interpreted: Wis. Stat. §§ 93.06, 93.07, 93.15, 95.20, 95.22, 95.38, 95.42, 95.43, 95.45, 95.55, 95.57, 95.60, 95.68, 95.69, 95.71 and 95.715.
Statutory Authority
Statutory authority: Wis. Stat. §§ 93.06 (1f), (1n), and (1p), 93.07 (1), (2) and (10), 93.15 (1) to (3), 95.20, 95.22 (1) and (2), 95.38 (3), 95.42, 95.43 (1) and (2), 95.45 (4) (c), and (5), 95.55 (2), (3) and (6), 95.57 (1) and (2), 95.60 (3), (4) (c), (4s), (5), and (5m), 95.68 (2m) and (8), 95.69 (2m) and (8), 95.71 (8), and 95.715 (2), and (3). Explanation of Statutory Authority
The Department of Agriculture, Trade and Consumer Protection (DATCP) has broad authority to promulgate rules for the proper enforcement of its programs under Wis. Stat. §§ 93.07 (1) and (10).
DATCP has broad authority under Wis. Stat. § 95.20 to prohibit and/or regulate the importing of animals into this state or the movement of animals if there are reasonable grounds to believe it is necessary to prevent the introduction or spread of disease in this state. DATCP has specific rulemaking authority on reporting animal diseases under Wis. Stat. § 95.22 (2), certificates of veterinary inspection under Wis. Stat. § 95.45 (4) (c), regulation of the farm-raised deer industry under Wis. Stat. § 95.55 (6), regulation of fish farms under Wis. Stat. § 95.60 (3) and (4s), regulation of animal markets under Wis. Stat. § 95.68 (8), regulation of animal dealers under Wis. Stat. § 95.69 (8), regulation of animal truckers under Wis. Stat. § 95.71 (8), and regulation of feed lots under Wis. Stat. § 95.715 (2) (d). DATCP makes and enforces these rules through its Division of Animal Health (Division). Related Statutes and Rules
The Department of Natural Resources (DNR) has statutes and rules that are closely related to some of the program areas in DATCP. Wis. Admin. Code § NR 16.45 establishes fencing requirements for keepers of farm-raised deer that are white-tailed deer. Wis. Stat. § 29.87 establishes guidelines by which the DNR may dispose of escaped farm-raised deer. Wis. Stat. § 29.735 establishes requirements for importation of fish other than health requirements, and Wis. Stat. § 29.736 establishes requirements for the stocking of fish into waters of the state, other than health requirements. Plain Language Analysis
Wis. Admin. Code ch. ATCP 10 specifies requirements relating to animal diseases and movement, and Wis. Admin. Code ch. ATCP 12 specifies requirements for animal truckers, markets and dealers. This proposed rule makes the following modifications:
Definitions
Some definitions have been updated to reflect appropriate terminology.
Equine infectious anemia test (EIA). The current rule requires the EIA test to be conducted in a laboratory approved by the department or the federal bureau. The proposed rule requires an EIA test to be conducted in a laboratory approved by the department and the federal bureau.
Feed lot. The proposed rule creates this definition as a facility at which feeder cattle are assembled for feeding prior to slaughter.
Farm-raised deer keeper. The proposed rule adds “Farm-raised deer keeper” to the current definition of “Keeper of farm-raised deer” as both terms are used throughout Wis. Admin. Code ch. ATCP 10.
Livestock. The proposed rule clarifies that the term applies to South American camelids (llama, alpaca, vicuna, and guanaco) and not all camelids.
Slaughtering establishment. The current rule specifies that a slaughtering establishment must be licensed by the department or subject to inspection by the USDA, which is not accurate. The proposed rule specifies that a facility must be both licensed and inspected and the licensing and inspection may be by either by the department or USDA. The proposed definition also encompasses an approved intermediate livestock handling facility if the latter is affiliated with a slaughtering establishment.
Tuberculosis test. The current rule specifies the tests that may be used for Tuberculosis. The proposed rule specifies that a post axillary Tuberculosis test may be used for all camelids (not just South American camelids) but not for exotic ruminants.
The proposed rule replaces the definition term “Axillary tuberculosis test” with “Post axillary tuberculosis test” to accurately define the test to be used when testing camelids for Tuberculosis.
Wild deer disease control area. The proposed rule creates this definition to mean a CWD-affected area designated by the DNR under Wis. Admin. Code ch. NR 10 or other disease area affecting wild cervid designated by the DNR or the department. Medical Separation
Currently, medical separation provisions are listed under farm-raised deer and fish farms, respectively, as these are the species for which medical separation is most requested. The current rule requires fencing and facilities to be adequate to maintain separation of animals at all times. Current medical separation inspection fees are $200 for farm-raised deer and $400 for fish farms. The $400 fee more accurately reflects the cost involved with these inspections.
The proposed rule creates a new section relating to medical separation of any species. The proposed rule reflects the federal requirement that fencing and facilities must maintain at least 30 feet of separation at all times for bovine animals and farm-raised deer. Medical separation fees are $400 for each day (or portion of a day) needed to complete the inspection. Also see medical separation requirements for Federally Approved Livestock Marketing Facilities, below.
Both the current and the proposed rule specify that no inspection is required for the renewal of an existing medically separated premises if the department has previously inspected the premises for medical separation, and there have been no changes in registration, licensure, certification, ownership, or use of premises.
Disease Reporting
Appendices A and B list diseases that must be reported to the department within one day or 10 days, respectively. The proposed rule updates the diseases listed in these appendices.
The proposed rule requires that a person who reports a disease listed under either of the appendices must include the official individual identification of the animal tested. If the animal has no official individual identification, the person collecting the test sample must apply such identification to livestock (other than fish) or another appropriate identifier for other non-livestock animals. Identification must be applied prior to collecting the test sample.
The proposed rule specifies that if the state veterinarian determines that a new disease is reportable because it presents a threat to animals or humans in the state, he or she may issue an order to make the disease reportable within one or ten days.
The proposed rule requires that test samples for Brucellosis, Johne’s disease, pseudorabies, Tuberculosis, chronic wasting disease, and viral hemorrhagic septicemia, be submitted to a laboratory approved by the department.
Wisconsin Certified Veterinarians
The current rule specifies requirements for a veterinarian to automatically become a Wisconsin certified veterinarian. It also specifies reasons for decertification. The proposed rule requires Wisconsin certified veterinarians to follow accreditation standards under 9 CFR 160-162 or risk suspension or revocation of Wisconsin certification. The proposed language clarifies the department’s authority, thereby allowing the department to take swift action if a veterinarian does not follow accreditation standards. This authority is not new, but it will allow the department to be more responsive when action is needed. Brucellosis Testing and Control
The current rule specifies Brucellosis testing and control requirements under bovine, farm-raised deer, and swine portions of the rule. The proposed rule creates a new, general section relating to Brucellosis testing and control that applies to all animals and deletes the Brucellosis provisions currently related to bovine, farm-raised deer, and swine.
Tuberculosis Testing and Control
