The statement of scope for this rule, SS 058-23 was approved by the Governor on August 17, 2023, published in Register No. 812A3 on August 21, 2023, and approved by the Natural Resources Board on September 27, 2023. This rule was approved by the Governor on December 21, 2023.
The Wisconsin Natural Resources Board proposes an order to amend NR 20.20 (73) (n) 5., 25.06 (1) (a) 1. (intro.), 2. (intro.), a., and b., and 25.09 (1) (b) 1. relating to Lake Superior cisco and lake trout regulations and affecting small business.
FH-11-23 (E)
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: The department has interpreted ss. 29.014 (1), 29.041, and 29.519 (1m) (b), Stats., as authorizing this rule.
2. Statutory Authority: The department is granted the authority for this rule under ss. 29.014 (1), 29.041, and 29.519 (1m) (b), Stats.
3. Explanation of Agency Authority: Section 29.014(1), Stats., directs the department to establish and maintain any bag limits and conditions governing the taking of fish that will conserve the fish supply and ensure the citizens of this state continued opportunities for good fishing.
Section 29.041, Stats., provides that the department may regulate fishing on and in all interstate boundary waters and outlying waters.
Section 29.519 (1m) (b), Stats., grants discretion to the department to establish commercial fish species harvest limits after giving due consideration to the recommendations made by the commercial fishing boards. In order to establish harvest limits, s. 29.519 (1m) (b), Stats., grants the department the authority to promulgate rules establishing formulas for harvest allocations among licensees or for the allotment of individual licensee catch quotas. Additional authorities granted to the department through s. 29.519 (1m) (b), Stats., include the authority to designate the size, kind and amount of gear allowed for harvesting fish, the authority to restrict the number of licenses issued, and the authority to designate areas in outlying waters as restricted to commercial fishing operations. This section also specifies that the limitations on harvests, licenses, restricted areas, and gear must be based on the available harvestable population of fish and must uphold the wise use and conservation of the fish to prevent overexploitation.
In addition, the 1972 Gurnoe Decision (State v. Gurnoe, 53 Wis. 2d 390 (1972)) established that the Lake Superior Chippewa tribes reserved the right to fish in Lake Superior as part of their treaties with the United States government. Thus, the state of Wisconsin works in coordination with these tribes to manage the Lake Superior fishery for sustainable harvest.
4. Related Statutes or Rules: None apply.
5. Plain Language Analysis:
SECTION 1 adjusts the recreational lake trout harvest closure trigger for Lake Superior to reflect the increased lake trout quota.  When reached, this trigger would prompt the department to close the recreational lake trout fishing season to prevent exceeding the recreational lake trout quota. 
SECTION 2 adjusts the lake trout state and Tribal quota allotments for the WI-2 (east of Bark Point) waters of Lake Superior.  The overall lake trout harvest quota for state (commercial and recreational) and Tribal fishers will increase through this rule. 
SECTION 3 establishes a minimum mesh size requirement of 4 ¼ inch stretch measure on the pot of the trap for trap nets used in Lake Superior.  This will prevent the incidental catch and mortality of lake whitefish that are caught in lake trout and lake whitefish fishing operations.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
No federal statutes or regulations apply.  States possess inherent authority to manage the fishery and wildlife resources located within their boundaries, except insofar as preempted by federal treaties and laws, including regulations established in the Federal Register. 
7. If Held, Summary of Comments Received During Preliminary Comment Period
and at Public Hearing on the Statement of Scope:
The department held a preliminary public hearing and comment period on the statement of scope for FH-11-23 (E) and FH-12-23 on October 5, 2023.  Three people attended the preliminary public hearing, and while none provided comments, two people asked questions relating to the Lake Superior fishery.  The department did not receive any written comments.
8. Comparison with Similar Rules in Adjacent States:
Along with Wisconsin, Michigan and Minnesota are the only adjacent states with a Lake Superior commercial fishery.  In Michigan, whitefish is the focus of the commercial fishery.  Minnesota regulates several commercial fisheries on Lake Superior.  Both Minnesota and Michigan have established quotas, gear requirements and other restrictions for commercial fishing in Lake Superior, working in cooperation with the Chippewa tribes in those states.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
Lake Superior offers a diverse fishery in which lake trout, cisco, and lake whitefish are the three main commercial fish species. Recreational fishers and local charter and guide businesses also value these species as game fish, and frequently target lake trout and whitefish. Because commercial, recreational, and subsistence fishers all depend on a sustainable Lake Superior fishery, harvest regulations must be 
analyzed and balanced using updated biological data and public input from the different stakeholder groups. 
Quotas and associated regulations for lake trout and cisco are updated every three years (for lake trout) and every two years (for cisco) based on the most current biological data.  Population monitoring is a key component of managing Lake Superior fisheries.  A statistical catch-at-age-model has been developed to sustainably manage lake trout harvest in waters of WI-2 Lake Superior, while a static quota is used in WI-1.  The lake trout statistical catch-at-age model incorporates data from independent fishery assessments, the sport fishery, the commercial fishery, and tribal fisheries to project population trends and predict the maximum sustainable harvest of lake trout.  The model incorporates length, age, and mortality data to maintain a 42 percent mortality rate on lake trout.  The allowable harvest of lake trout is used to restrict footage available for gill net effort, which also regulates whitefish harvest. The footage is based on monitored catch-per-unit-effort of lake trout in three time periods.  A rolling 3-year average is used for each period to determine the amount of footage that can be sustainably used while staying within the lake trout quota.  The effort restriction also encourages the avoidance of lake trout, which are more vulnerable than whitefish, and rewards minimizing lake trout bycatch.  Department and tribal biologists also developed a whitefish model to better assess and predict the impacts of harvest on the whitefish population. 
The cisco quota update methodology is still under development, so this emergency rule will focus on lake trout.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The main cost associated with this rule would relate to ensuring that trap nets meet the minimum mesh size requirement for preventing catch of sublegal lake whitefish.  However, all commercial fishers already use trap nets with a mesh size in compliance with the proposed rules.  Therefore, this rule would not require a major overhaul in gear use by state-licensed commercial fishers. 
Because this rule would increase the lake trout quota, state commercial and recreational fishers would most likely benefit from implementation of this rule.  Dockside value of harvested lake trout is dependent on a variety of factors including market value and fishing conditions, and fuel and other expenditures have a greater economic impact for commercial fishers than quota adjustments.  Assuming a dockside value of $1.50 per pound for lake trout, the total gain to commercial fishers as a result of the quota increase would be about $7,020, which would increase when the fish are sold.  It is also important to note that whitefish harvest is also limited by lake trout harvest, so an increase in the lake trout quota also allows for additional gill net effort to be used to fish for lake whitefish.  Though this rule does not apply to tribal fishers, tribal commercial fishers are also included under the quota through the Lake Superior Fishing Agreement, so they are likely to see a similar pattern for lake trout and whitefish harvest.  
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.