Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 687, 3/31/2013

Rule-Making Notices

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. 1—

rulemaking_notices EmR1304 EmR1304

(DNR # FH-23-12(E))

NOTICE IS HEREBY GIVEN THAT pursuant to and interpreting ss. 29.014 (1), 29.041, and 29.519 (1m) (b), Stats., the Department of Natural Resources will hold a public hearing on revisions to chs. NR 20 and 25, Wis. Adm. Code, in emergency rule Order FH-23-12(E) relating to lake trout harvest limits on Lake Superior.

The hearing will be held on:

Hearing Information

Date:   Thursday, April 11, 2013
Time:   6:00 p.m.
Location:   Bayfield Ranger Station
  141 S. Third Street
  Bayfield, WI 54814

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 Peter Stevens at [phone] Ext: 12 with specific information on your request at least ten days before the date of the scheduled hearing.

Availability 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 Peter Stevens, Bureau of Fisheries Management, 141 S. Third Street, Bayfield WI, 54814 or [e-mail].

Written comments on the proposed rule may be submitted via U.S. mail or email to Peter Stevens 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 hearing. Comments may be submitted until April 30, 2013.

Analysis Prepared by the Department of Natural Resources

The welfare of state-licensed commercial fishers, tribal commercial fishers, recreational anglers, and associated businesses is threatened by a decline in the lake trout population in the Apostle Islands vicinity of Lake Superior. The emergency rule is necessary to implement harvest limits for the 2012-13 lake trout commercial harvest season. It reduces the annual commercial fishing harvest limit for lake trout on Lake Superior, revises rules limiting gill-net fishing effort, and authorizes limitations on recreational fishing if the recreational lake trout harvest exceeds specified limits. The rule elements have been negotiated to develop the State-Tribal Lake Superior Agreement.

Section 1 of the rule authorizes the department to enforce a reduced daily bag limit for lake trout in Lake Superior if the recreational lake trout harvest during the 2012-13 fishing season exceeds 95% of the total allowable recreational lake trout harvest of 27,500 fish (27,500*0.95 = 26,125). If total lake trout harvest during that same time exceeds 98% of the total allowable harvest (27,500*0.98 = 26,950), a zero bag limit would be enforced and no fish could be harvested. Recreational lake trout harvest is measured by conducting department creel surveys during which staff gather harvest information directly from anglers at the water.

Section 2 reduces the annual state-licensed and tribal commercial fishing harvest quota for lake trout on Lake Superior.

Section 3 amends the calculation used to determine the footage of gill net that may be set in the water by each fisher, also called “fishing effort." Each fisher is allowed to fish only the amount of net that would cause an incidental catch and kill of his or her lake trout quota.

Statutes interpreted

Sections 29.014 (1), 29.041, and 29.519 (1m) (b), Stats.

Statutory authority

Sections 29.014 (1), 29.041, and 29.519 (1m) (b), Stats.

Explanation of agency authority to promulgate the proposed rules under the statutory authority

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

Section 29.519 (1m) (b), Stats., authorizes the department to limit the number of Great Lakes commercial fishing licenses, designate the areas in the outlying waters under the jurisdiction of this state where commercial fishing operations are restricted, establish species harvest limits, and designate the kind, size and amount of gear to be used in the harvest.

Related statutes or rules

29.973 Commercial fish reporting system

Summary of and comparison with existing or proposed federal statutes and regulations.

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

Comparison with rules in adjacent states

Of the four adjacent states, only Minnesota and Michigan have lake trout fisheries on the Great Lakes. The commercial harvest of lake trout from Minnesota waters of Lake Superior is limited to a population assessment fishery. In Michigan waters of Lake Superior there is no state-licensed commercial fishery, but tribal harvest is guided by the same modeling approach as in Wisconsin.

Summary of factual data and analytical methodologies

The total allowable catch of lake trout in Wisconsin waters of Lake Superior is divided among tribal commercial fisheries, state-licensed commercial fisheries, tribal subsistence fishers, and state sport anglers. A ten-year State-Tribal Lake Superior Agreement specifies annual allowable lake trout harvests, defines refuges and special fishing areas, and establishes other terms and arrangements for state and tribal commercial fishing. The allowable lake trout harvests are reviewed by a state-tribal biological committee using the latest available data and modeling results. Based on those results and recommendations from the biological committee, the Agreement is re-negotiated as needed to change the total annual harvest of lake trout by all fishers, and possibly to address other issues related to shared harvest of lake trout and other species by state and tribal fishers.

There has been a steady decline in lean lake trout abundance in Lake Superior since the early 2000s. This decline has been confirmed by independent surveys conducted by the department and has been projected by models used to set safe harvest levels. Some level of decline was expected due to high harvest limits in the early 2000s, which were in response to several large year classes (numbers of fish spawned in the same year) predicted to enter the fishery. However, mortality of lake trout from sea lamprey over the last eight years has also been higher than Lake Superior target levels. This combination of increased harvest and lamprey mortality has caused lake trout abundance to decline. While relatively stable abundances of spawning lake trout suggest that this decline is still reversible, action needs to be taken to arrest the lean lake trout population's decline. The decline in lake trout population abundances and predicted further declines necessitate the emergency harvest reductions in order to ensure a sustainable lake trout fishery over the long-term.

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

There would be no implementation costs for the department. State-licensed and tribal commercial fishers may be affected by the amount of fish they are able to harvest. It is not expected that fishers will have any compliance expenditures or reporting changes associated with the rule.

The decline in lean lake trout abundance in Lake Superior has been confirmed by surveys conducted by the department and has been projected by models used to set safe harvest levels. Rule changes are necessary in order to ensure a sustainable lake trout fishery over the long-term.

Effects on Small Business

The proposed rule change would impact state-licensed commercial fishers, tribal commercial fishers, fish wholesalers, and others whose interests or businesses are affected by commercial fishing. Minimal impact is expected for businesses or business associations. No additional compliance or reporting requirements will be imposed on small businesses as a result of these rule changes.

The rule will be enforced by department conservation wardens under the authority of chapter 29, Stats., through routine patrols, record audits of wholesale fish dealers and commercial fishers, and follow up investigations of citizen complaints.

Final regulatory flexibility analysis

The proposed rule is expected to have minimal economic impact on small businesses. The department determined 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].

Rules Proposed by the Department of Veterans Affairs

No information.

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.

Agency Contact Person

Peter Stevens

Department of Natural Resources

141 S. Third Street

Bayfield WI, 54814

Telephone: [phone] Ext: 12

Email: [e-mail].

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2049 (R03/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: [phone]
ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
X Original   Updated   Corrected
2. Administrative Rule Chapter, Title and Number
Sections of chs. NR 20 and 25 related to lake trout harvest limits in Lake Superior
3. Subject
The emergency rule will implement harvest limits for the 2012-13 lake trout commercial harvest season. It reduces the annual commercial fishing harvest limit for lake trout on Lake Superior, revises rules limiting gill-net fishing effort, and authorizes limitations on recreational fishing based on negotiations to develop the State-Tribal Lake Superior Agreement
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
⍽ GPR   ⍽ FED   ⍽ PRO   ⍽ PRS   ⍽ SEG   ⍽ SEG-S
6. Fiscal Effect of Implementing the Rule
X No Fiscal Effect X Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Cost
7. The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		X Specific Businesses/Sectors ⍽ Public Utility Rate Payers X Small Businesses (if checked, complete Attachment A)
8. Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes   X No
9. Policy Problem Addressed by the Rule
The welfare of state-licensed commercial fishers, tribal commercial fishers, recreational anglers, and associated businesses is threatened by a decline in the lake trout population in the Apostle Islands vicinity of Lake Superior. The emergency rule is necessary to implement harvest limits for the 2012-13 lake trout commercial harvest season.
10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
The purpose of the emergency rule is to amend Lake Superior lake trout harvest limits as required by revisions to the State-Tribal Lake Superior Agreement. The total allowable catch of lake trout in Wisconsin waters of Lake Superior is divided among tribal commercial fisheries, state-licensed commercial fisheries, tribal subsistence fishers, and state sport anglers. Lake trout harvest limits were negotiated in October 2012 among the Department of Natural Resources and the Red Cliff and Bad River Bands of Lake Superior Chippewa and those changes must be ordered through Administrative Code. The Department met with the Lake Superior Commercial Fishing Board in November 2012. The Board understood the biological need for making harvest quota changes, but it had concerns that cuts be made fairly and equitably across all fishers.
11. Identify the local governmental units that participated in the development of this EIA.
N/A
12. 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 rule may limit the commercial harvest of lake trout and other species by state-licensed and tribal commercial fishers. The total dockside value of the reported state commercial lake trout harvest in 2011 was approximately $20,000. Harvest is not expected to be reduced by more than 25% and therefore the lost value of lake trout is not expected to exceed $5,000. However, this rule will also limit the amount of gill net effort commercial fishers can use to target whitefish since lake trout are frequently caught in the same nets. Reductions in gill net effort therefore have the potential to cause commercial fishers additional income reductions. The total dockside value of whitefish harvested by state commercial fishers in gill nets was approximately $160,000 in 2011. Harvest is expected to be reduced by no more than 25% putting the total loss at no more than $40,000 and likely less because fishers can shift to using trap nets that are not subject to the same effort restrictions governing gill nets. Moreover, commercial fishers can continue current efforts to adjust the location, time, and manner in which they set gill nets targeting whitefish so as to reduce harvest of non-target lake trout. The exact amount of economic impact is unknown, but is not expected to exceed $50,000. The proposed rule does not impose any compliance or reporting requirements on small businesses nor are any design or operational standards contained in the rule. The rule does not allow for the potential to establish a reduced fine for small businesses, nor does it establish “alternative enforcement mechanisms" for “minor violations" of administrative rules made by small businesses. Public utility rate payers and local governmental units will not be affected by the rule.
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
A predicted continued decline in lake trout population abundances necessitates the current reductions in harvest numbers to support a sustainable lake trout fishery over the long-term. Allowing harvest at current quota and effort limits - an alternative to implementing the rule - is not biologically sustainable and could create negative economic impacts for commercial fishers.
14. Long Range Implications of Implementing the Rule
Reducing quota and effort limits for commercial fishers, authorizing harvest limits on recreational fishers, and monitoring lake trout populations will support a sustainable lake trout fishery over the long-term.
15. Compare With Approaches Being Used by Federal Government
Authority to promulgate fishing regulations is granted to states. None of the proposed changes violate or conflict with federal regulations.
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Of the four states, only Minnesota and Michigan have lake trout fisheries on the Great Lakes. The commercial harvest of lake trout from Minnesota waters of Lake Superior is limited to a population assessment fishery. In Michigan waters of Lake Superior there is no state-licensed commercial fishery, but there is a tribal harvest guided by the same modeling approach as Wisconsin.
17. Contact Name				18. Contact Phone Number
Peter Stevens				[phone] Ext. 12

This document can be made available in alternate formats to individuals with disabilities upon request.

ATTACHMENT A

1. Summary of Rule's Economic and Fiscal Impact on Small Businesses (Separately for each Small Business Sector, Include Implementation and Compliance Costs Expected to be Incurred)

The rule may limit the commercial harvest of lake trout and other species by state-licensed and tribal commercial fishers. The total dockside value of the reported state commercial lake trout harvest in 2011 was approximately $20,000. Harvest is not expected to be reduced by more than 25% and therefore the lost value of lake trout is not expected to exceed $5,000. However, this rule will also limit the amount of gill net effort commercial fishers can use to target whitefish since lake trout are frequently caught in the same nets. Reductions in gill net effort therefore have the potential to cause commercial fishers additional income reductions. The total dockside value of whitefish harvested by state commercial fishers in gill nets was approximately $160,000 in 2011. Harvest is expected to be reduced by no more than 25% putting the total loss at no more than $40,000 and likely less because fishers can shift to using trap nets that are not subject to the same effort restrictions governing gill nets. Moreover, commercial fishers can continue current efforts to adjust the location, time, and manner in which they set gill nets targeting whitefish so as to reduce harvest of non-target lake trout. The exact amount of economic impact is unknown, but is not expected to exceed $50,000. The proposed rule does not impose any compliance or reporting requirements on small businesses nor are any design or operational standards contained in the rule. The rule does not allow for the potential to establish a reduced fine for small businesses, nor does it establish “alternative enforcement mechanisms" for “minor violations" of administrative rules made by small businesses. Public utility rate payers and local governmental units will not be affected by the rule.

2. Summary of the data sources used to measure the Rule's impact on Small Businesses

Dockside values of fish; commercial fishing harvest reports.

3. Did the agency consider the following methods to reduce the impact of the Rule on Small Businesses?

X Less Stringent Compliance or Reporting Requirements X Less Stringent Schedules or Deadlines for Compliance or Reporting X Consolidation or Simplification of Reporting Requirements X Establishment of performance standards in lieu of Design or Operational Standards X Exemption of Small Businesses from some or all requirements ⍽ Other, describe:

4. Describe the methods incorporated into the Rule that will reduce its impact on Small Businesses

No additional compliance or reporting requirements will be imposed on small businesses as a result of these rule changes.

5. Describe the Rule's Enforcement Provisions

The rule will be enforced by Department Conservation Wardens under the authority of chapter 29, Stats., through routine patrols, record audits of wholesale fish dealers and commercial fishers, and follow up investigations of citizen complaints.

6. Did the Agency Prepare a Cost Benefit Analysis (if Yes, attach to form)

⍽ Yes X No