Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 675, 3/31/2012

Rule-Making Notices

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

rulemaking_notices CR 12-022 CR 12-022

(DNR # FH-21-11)

NOTICE IS HEREBY GIVEN THAT pursuant to sections 23.11 (1), 29.014 (1), 29.041, 30.62 (1), and 227.11 (2) (a), Wis. Stats., interpreting sections 29.014 (1), 29.041, and 30.62 (1), Wis. Stats., the Department of Natural Resources will hold a public hearing to consider the creation of section NR 19.058, Wis. Adm. Code, in permanent rule Order FH-21-11, relating to requiring access to wire cutters when trolling in outlying waters.

Hearing Information

NOTICE IS HEREBY FURTHER GIVEN THAT the hearing will be held on:

Date:   Wednesday, April 11, 2012

Time:   5:00 P.M.

Location:   Lakeshore Technical College
  Sheboygan County Training Room
  1290 North Avenue
  Cleveland, WI 53015

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 William Horns at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Rules and Submitting Comments

The proposed rule and supporting documents may be reviewed and comments electronically submitted at the following internet site: http://adminrules.wisconsin.gov. A copy of the proposed rules and supporting documents may also be obtained from William Horns, Bureau of Fisheries Management, P.O. Box 7921, Madison, WI 53707 or [e-mail].

Written comments on the proposed rule may be submitted via U.S. mail or email to William Horns at the addresses noted above. 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. Comments may be submitted until April 12, 2012.

Analysis Prepared by the Department of Natural Resources

The proposed permanent rule will:

□   Prohibit persons from trolling with downriggers on outlying waters (Lake Superior, Lake Michigan, Green Bay, Sturgeon Bay, Sawyer's Harbor, and the Fox River from its mouth up to the dam at DePere, s. 29.001(63), Stats.) without direct and immediate access to a wire cutter or other device capable of severing any line pulled behind the boat.

This rule is pursuant to recommendations of the Natural Resources Board (NRB). Trap nets are fixed structures on the lake bottom that can pose a risk to sport trollers whose lures and downriggers can become entangled in the trap net ropes. This has been the subject of controversy and rule making over the past three decades. Current department policy reflects legislative intent to accommodate both sport and commercial fishing in the Great Lakes. In April 2011, the NRB approved permanent rule changes (FH-50-10, CR 11-008) related to the marking and placement of trap nets. The NRB also implemented these rules on an emergency basis so they would be in effect for the 2011 fishing season (FH-10-11E). As part of the emergency rule, there was also a requirement that sport anglers carry wire cutters sufficient to cut themselves free should a downrigger cable become snagged in a trap net or other obstruction. That requirement was not included in the permanent rules because it was outside of the scope of the original public hearings, but it is addressed by this rule proposal.

Statutes interpreted

Sections 29.014 (1), 29.041, and 30.62 (1), Wis. Stats.

Statutory authority

Sections 23.11 (1), 29.014 (1), 29.041, 30.62 (1), and 227.11 (2) (a), Wis. Stats.

Explanation of agency authority

Section 23.11 (1), Wis. Stats., grants the department such powers as may be necessary or convenient to enable it to exercise the functions and perform the duties required of it by ch. 23, Wis. Stats., and by other provisions of law.

Section 29.014 (1), Wis. Stats., directs the department to establish and maintain 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, Wis. Stats., provides that the department may regulate fishing on and in all interstate boundary waters and outlying waters.

Section 30.62 (1), Wis. Stats., provides that when equipment is required no person shall operate any boat on the waters of this state unless such boat is equipped as required by statute or rules of the department promulgated under 30.62 (1), Stats.

Section 227.11 (2) (a), Wis. Stats., expressly confers rulemaking authority on the department to promulgate rules interpreting any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.

Related statutes and rules

29.924 Investigations; searches.

29.931 Seizures.

29.971 General penalty provisions.

29.984 Commercial fish protection surcharge.

29.9905 Great Lakes resource surcharge.

29.991 Fishing net removal surcharge

Plain language analysis

SECTION 1. of the Order prohibits persons from trolling with downriggers on outlying waters (Lake Superior, Lake Michigan, Green Bay, Sturgeon Bay, Sawyer's Harbor, and the Fox River from its mouth up to the dam at DePere, s. 29.001 (63), Wis. Stats.) without direct and immediate access to a wire cutter or other device capable of severing any line pulled behind the boat.

The rule will require sport trollers on outlying waters to carry wire cutters for emergency release from entanglement with trap nets or other obstructions. This rule is pursuant to recommendations of the Natural Resources Board. Trap nets are fixed structures on the lake bottom that can pose a risk to sport trollers whose lures and downriggers can become entangled in the trap net ropes. This has been the subject of controversy and rule making over the past three decades. Current department policy reflects legislative intent to accommodate both sport and commercial fishing in the Great Lakes. In April 2011, the Natural Resources Board (NRB) approved permanent rule changes (FH-50-10, CR 11-008) related to the marking and placement of trap nets. The NRB also implemented these rules on an emergency basis so they would be in effect for the 2011 fishing season (FH-10-11E). As part of the emergency rule, there was also a requirement that sport anglers carry wire cutters sufficient to cut themselves free should a downrigger cable become snagged in a trap net or other obstruction. That requirement was not included in the permanent rules because it was outside of the scope of the original public hearings, but it is addressed by this rule proposal.

Summary of, and comparison with, existing or proposed federal regulations

The department is not aware of any existing or proposed federal regulation that would govern commercial fishing in Wisconsin's waters of Lake Michigan and Green Bay or Lake Superior.

Comparison with rules in adjacent states

None of the adjacent states require wire-cutting equipment to be on board boats.

Summary of factual data and analytical methodologies

SECTION 1 of the rule reflects an effort by the department to take steps to minimize the risk of conflicts between sport trollers and commercial trap nets. This change reflects the judgment of Fisheries and Law Enforcement staff following examination of Great Lakes accident data, discussions with appropriate sport and commercial advisory groups and the Natural Resources Board, and internal discussions.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

There would be no implementation costs for the department and no expected costs or impacts on small businesses. Compliance costs would be minimal for individual sport anglers who need to purchase wire cutters. A quick online search for the cost of wire cutters showed prices ranging from $3 to $56.

Rules Proposed by the Department of Veterans Affairs

No information.

Effects on Small Business

The rule would directly affect sport anglers who engage in trolling with downriggers on the Great Lakes. It is not expected to have an effect on small business.

The rule will be enforced by department Conservation Wardens under the authority of chapters 23 and 29, Wis. Stats., through routine patrols, with a total citation penalty of $243.

Pursuant to ss. 227.114 and 227.137, Wis. Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses. The Department conducted an economic impact analysis in consultation with businesses, business associations, local governmental units, and individuals. The Department has determined that this rule would not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state. The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

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.

Agency Contact Person

William Horns

Department of Natural Resources

P.O. Box 7921

Madison, WI 53707-7921

Telephone: [phone]

Email: [e-mail]

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
Original X Updated Corrected
Administrative Rule Chapter, Title and Number
Chapter NR 19 Miscellaneous Fur, Fish, Game, and Outdoor Recreation; NR 19.058
Subject
Requiring sport anglers trolling on outlying waters to carry wire cutters for emergency release from entanglement with trap nets or other obstructions
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
GPR FED PRO PRS SEG SEG-S
Fiscal Effect of Implementing the Rule
X No Fiscal Effect Indeterminate	Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		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
Trap nets or other fixed structures on the lake bottom can pose a risk to sport trollers whose lures and downriggers can become entangled in the trap net ropes. This rule would address safety concerns and require trollers to have direct and immediate access to a wire cutter or other device capable of severing any line pulled behind a boat. The rule reflects an effort by the Department to take steps to minimize the risk of conflicts between sport trollers and commercial trap nets. This change reflects the judgment of Fisheries and Law Enforcement staff following examination of Great Lakes accident data, discussions with appropriate sport and commercial advisory groups and the Natural Resources Board, and internal discussions.
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)
Sport anglers who fish by trolling in a boat on outlying waters will be required to have direct and immediate access to a wire cutter or other hand-held device on board capable of immediately severing any fishing line or cable being used in the water behind the boat. This may impact some anglers who need to purchase wire cutters or a similar device, which is not a substantial cost. A quick online search for the cost of wire cutters showed prices ranging from $3 to $56. The rule will be enforced by Department conservation wardens under the authority of chapters 23 and 29, Wis. Stats., through routine patrols and with a total citation penalty of $243. This rule does not impose any compliance or reporting requirements on businesses, business sectors, public utility rate payers, or local governmental units. The Department has determined that this rule would not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state.
Economic Impact - Request for Comments Prior to the January 30-February 13 open period for economic impact comments, the Department requested comments from the Lake Michigan and Lake Superior Commercial Fishing Boards, 17 port city mayors offices and the same cities' chambers of commerce, the Wisconsin Wildlife Federation, Wisconsin Conservation Congress, Wisconsin Federation of Great Lakes Sport Fishing Clubs, UW Sea Grant, and the Great Lakes Indian Fish and Wildlife Commission, as well as posted the proposed rule documents to the Department website and the Wisconsin Administrative Rules website. The Department received the following two comments: Tom Kocourek, President, Northeastern Wisconsin Great Lakes Sport Fishermen As President of the Northeastern Wisconsin Great Lakes Sport Fishermen's organization I am speaking on behalf of our 650 members. I am aware of this proposal and do not see it as having a negative impact on our local community or the fishing community. The proposed rule adds an element of safety to fishermen using downrigger equipment and I am confident that the vast majority of fishermen currently using downrigger equipment already have such wire cutter equipment on board their boats. Michael J. LeClair, President of Susie-Q Fish Company, Two Rivers, WI I am a whitefish trap net fisherman out of Two Rivers, Wisconsin. The rule you have proposed, FH-21-11, would greatly help my business. When the sport fishers get their downrigger balls caught in our net, they become entangled. Then, the sport fishers try to pull them out and rip large holes in our nets. These holes make our nets inefficient at catching whitefish, which hurts our business. This rule would help stop these sport fishers from putting holes in our nets. This rule would also protect sport fishers and stop any possible lawsuits that might occur, if any sport fishers become entangled in our nets. A lawsuit would hurt our business. This rule would protect us.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Current Department policy reflects legislative intent to accommodate both sport and commercial fishing in the Great Lakes. In June 2010, the fishing gear of a recreational fishing boat became entangled in a commercial trap net buoy line near Sheboygan. The boat capsized and one of the fishermen subsequently died of a heart attack. This incident re-ignited a long-standing controversy regarding where and when commercial trap nets should be allowed in southern Lake Michigan. Subsequently in April 2011, the Natural Resources Board (NRB) approved permanent rule changes related to the marking and placement of trap nets (FH-50-10, CR 11-008). The NRB also implemented these rules on an emergency basis so they would be in effect for the 2011 fishing season (FH-10-11E). As part of the emergency rule, there was also a requirement that sport anglers on outlying waters carry wire cutters sufficient to cut themselves free should a downrigger cable become snagged in a trap net or other obstruction. That requirement was not included in the permanent rule because it was outside of the scope of the original public hearings, but it is addressed by this rule proposal. The alternative would be to not require wire cutters on board trolling boats on outlying waters, which is the current law. Although the overall risk of accidents attributable to tangling in trap nets may be small compared with other hazards such as collisions, the consequences for sport anglers can be serious. Four out of the 82 reportable boating accidents on Lake Michigan during the years 2000 through 2010 in the U.S. Coast Guard's Boating Accident Report Database were associated with trolling. Reportable accidents are those causing death, injury requiring medical attention, or property damage in excess of $2,000. The tragic incident near Sheboygan was one of the accidents in this 11-year period in which the activity was trolling and the cause was “struck submerged object."
Long Range Implications of Implementing the Rule
There would be no implementation costs for the Department and no expected costs or impacts on small businesses. Compliance costs would be minimal for individual sport anglers who need to purchase wire cutters. Through education, having wire cutters on board sport trolling boats will become a common and easy to comply with safety measure, similar to having life jackets on board all boats.
Compare With Approaches Being Used by Federal Government
The Department is not aware of any existing or proposed federal regulation that would govern commercial fishing in Wisconsin's waters of Lake Michigan and Green Bay or Lake Superior.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
None of the adjacent states require wire-cutting equipment to be on board boats.