A. Codify the WSCP's historical practice of issuing permits to any person requesting such permits, rather than restrict permit requests to only a limited class of governmental officials, non-profit organizations, and the like.
B. Codify limits on the discretion of the WSCP currently found in the Department publication entitled, “Wisconsin State Facilities Access Policy" (WSFAP).
C. Codify the ability of the Department to publish reasonable, content-neutral limitations on uses appropriate for individual facilities, as the primary uses of buildings and facilities may differ.
D. Adopt the historical interpretation of the WSCP, that persons may be cited for violations of Wis. Admin. Code s.
Adm 2.14 (2) for conduct occurring in rooms reserved for use by the Legislature.
E. Define terms such as “event" and “exhibit" and “room," or others as deemed appropriate to increase the clarity of the code.
F. Codify the ability of the Department to waive the requirement that events or exhibits may only occur when a permit has been applied for 72 hours in advance, under a narrow set of circumstances.
G. Further clarify the distinction between an exhibit and signs and the like which are incidental to events, as discussed by Dane County Circuit Court Judge Remmington.
H. Further clarify that a person who creates a hazardous condition and refuses to cease doing so may be cited for such conduct under Wis. Admin. Code s.
Adm 2.14 (2) (zd).
I. Further clarify that even common materials can pose a hazard when used or deployed in a hazardous manner.
J. Further clarify that materials deployed in a hazardous manner may be disposed of by WSCP.
K. Further clarify the appropriate interpretation of Wis. Admin. Code s.
Adm 2.14 (2) (v) by sub-dividing the text, as it was interpreted by Dane County Circuit Court Judge Genovese.
Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Policies relevant to the rule are existing policies as found in Wis. Stats. s.
16.84, s.
16.845, Wis. Admin. Code Ch.
Adm 2, and the historical interpretations of the law as found in WSFAP. Alternatives to codifying historical practice and further clarifying the existing administrative code include: a) terminating the use of the Wisconsin State Capitol as a designated public forum; b) restricting the manners of use of the designated public forum; or c) disposing of the permitting system in favor of a “voluntary permit system."
Terminating the use of the Wisconsin State Capitol building as a designated public forum is an alternative. The United States Capitol building and a substantial number of other state capitol buildings are not public forums. Employing this alternative is not desirable since the vast majority of users have demonstrated that they are capable of holding events or displaying exhibits without undue interference with the functions of the Legislature or the Department. Similarly, restricting the manner of use (e.g. prohibiting rallies and the like) in the Wisconsin State Capitol building is an alternative that is not recommended for the same reasons.
Allowing the free use of the Capitol building without need for a permit is not practicable. There is no known legal or factual precedent for this type of arrangement in any other state capitol buildings. More importantly, the potential for conflict between user groups is too high to make such an approach a realistic or practical alternative, as demonstrated by the issues cited in the finding of emergency.
Detailed Explanation of Statutory Authority for the Rule, Including the Statutory Citation and Language
The Department is the managing authority of numerous state properties, and is required to, “Have charge of, operate and maintain
… the state capitol building
… and such other state properties as are designated by law." Wis. Stats. s.
16.84 (1). “The department shall promulgate under ch.
227, and shall enforce or have enforced, rules of conduct for property leased or managed by the department." Wis. Stats. s.
16.846 (1). Additionally, “the managing authority of any facility owned by the state
… may permit its use for free discussion of public questions, or for civic, social or recreational activities." Wis. Stats. sec. 16.845 (1). Further, “Whoever does or attempts an act for which a permit is required under this section without first obtaining a permit may be fined
… or imprisoned
… or both."
Estimate of Amount of Time that State Employees Will Spend Developing the Rule and Other Resources Necessary to Develop the Rule
Excluding time spent reviewing existing rules, historical information, and other sources in the preparation of this scope statement, we estimate that completion of the Final Draft of this emergency rule will require an additional 24 hours of staff time.
List with Description of all Entities that may be Affected by the Proposed Rule
This proposed emergency rule will clarify and protect the rights of all of the hundreds of user groups who obtain permits to use State facilities each year, as well as the Legislature, Supreme Court, the Attorney General's Office, and the numerous citizens and school groups who visit or work in our State Capitol and other State facilities.
Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that Is Intended to Address the Activities to be Regulated by the Proposed Rule
Existing federal regulations allow no permitted activities inside the U.S. Capitol building. Existing federal regulations require permits of activities on the grounds of the U.S. Capitol whenever 25 or more persons are involved. Existing federal regulations concerning other facilities vary widely by the nature and location of the facility.
Anticipated Economic Impact of Implementing the Rule. Also, Please Note if the Rule Is Likely to Have an Economic Impact on Small Businesses
None.
Contact Person
Mike Huebsch.
Natural Resources
Fish, Game, etc., Chs.
NR 1—
This statement of scope was approved by the governor on March 13, 2013.
Rule No.
Relating to
Deer management, hunting, and implementation of the 2012 White-tailed Deer Trustee's Report.
Rule Type
Permanent.
Finding/Nature of Emergency (Emergency Rule Only)
These will be permanent rules.
A proposal contained in the 2013–15 state budget would direct the department to develop emergency rules allowing final implementation of provisions from the White-tailed Deer Trustee's Report as soon as the 2014 deer season. If that proposal is enacted, the department will prepare a scope statement for emergency rules that will be similar to this scope statement.
Detailed Description of the Objective of the Proposed Rule
There has been dissatisfaction with various issues related to white-tailed deer management and hunting in Wisconsin. Gubernatorial candidate Scott Walker made a promise to appoint a “Deer Trustee" to review programs. In October of 2011 Dr. James C. Kroll, officially known as Wisconsin's white-tailed deer trustee, entered into a contract with the State of Wisconsin to conduct an independent, objective and scientifically-based review of Wisconsin's deer management practices. The White-tailed Deer Trustee's report was released to the public in July, 2012.
The objective of these proposed rules is to work with sportsmen and sportswomen and other stakeholders in order to implement ideas and solutions from the Deer Trustee's report to forge a new age for deer management.
Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Implementation of the Deer Trustee's report will result in establishing significant new policies for deer management and hunting management compared to current rules. The primary policy alternatives being analyzed and considered are ones recommended in the report. Throughout this rulemaking process, the department and its partners may evaluate other policy alternatives as they are identified.
The full report is located on the Wisconsin Department of Administration's website at:
http://www.doa.state.wi.us/ section.asp?linkid=239&locid=0
Ch. NR 1 related to Natural Resources Board Policies
Ch.
NR 1 establishes a general framework for the department's wildlife and forestry management activities. The department is reviewing the report with this framework in mind and will recommend modifications that are consistent with the report. These rules are likely to shift away from deer population goals expressed in specific numbers of animals in favor of more general population goals. The basis for establishing deer population goals may also be modified by these rules. The department may revise what it considers to be tolerable levels of crop damage. The chapter currently addresses wildlife habitat management policy and those provisions may be strengthened or made more specific based on significant wildlife habitat related recommendations in the report. Development of a Young Forest Initiative Task Force may be addressed in this chapter as well as a Deer Management Assistance Program. Deer research priorities may also be a topic that is addressed in this policy-setting chapter. This chapter will be amended to maintain cross-reference citations with Ch.
NR 10.
Ch. NR 8 related to License and Permit Procedures
Ch.
NR 8 establishes standards and procedures for the automated license issuance system. These rules may recommend changes if they are necessary to improve efficiency or flexibility in the issuance of licenses, as needs arise during development of new automated licensing systems, and to maintain cross-reference citations.
Ch. NR 10 related to Game and Hunting
This chapter establishes most of the deer population management policy and practices and hunting regulations that are in place today. Ch.
NR 10 establishes the Sex-Age-Kill model for estimating deer populations, deer population goals, and deer management units. These rules will replace the current population goals with a simplified goal statement to, “increase, stabilize, or decrease population density." These rules will establish a set of metrics to monitor progress towards the goal. These rules will reduce the number of deer management units and may combine farmland regions. The department will consider using county boundaries in place of the current unit boundaries.
These rules will simplify the regulatory process by setting antlerless harvest goals, regulations, and antlerless permit quotas on a three-to-five year cycle instead of annually under current rule. Historical demand for antlerless permits has not been a factor considered in quota setting in the past but would be a consideration under these rules. Through these rules, the department may eliminate free antlerless deer tags, currently referred to as herd control tags. These rules may establish a fee for antlerless tags which allow harvest of deer in its CWD management zones. Currently, some units have an unlimited number of antlerless deer permits available per hunter but, under this proposal, that may no longer be the case. Finally, these rules may establish antlerless deer permits and allow the establishment of quotas for public lands that are different from the permits and quotas that are established for privately owned lands in a management unit.
Simplifying the regulatory process and implementing a new population management goal system may require a variety of related hunting regulations changes. Changes may include the names for permits and the allowable use of various deer permits. Back tags worn by hunters, deer carcass tags, and tagging requirements may be modified or eliminated where possible in order to simplify regulations or as opportunities arise during development of new automated licensing systems. Deer registration and transportation requirements may be relaxed and, in their stead, more customer-friendly harvest reporting procedures established. Black bear are another species for which in-person registration of harvested animals is required. These rules may modify bear harvest recording requirements if that is practical because deer and bear registration occur at the same locations and through the same process under current rules.
The department may recommend deer hunting season date modifications as a result of this rulemaking. While the report generally recommends that, “keeping seasons and bag limits consistent for longer periods of time would allow better assessment of management progress", it is challenging to discuss management system changes of this scale without considering season dates. For instance, it may be possible to simplify hunting regulations by eliminating a one-day closure of the archery season on the day before the traditional nine-day firearm season opens. The timing of other seasons for youth, disabled hunters, or other special seasons may also be evaluated. A move to more “passive" management of CWD, as recommended in the report, may also involve changes to deer hunting season dates.
This rulemaking will establish a Deer Management Assistance Program that will allow landowners and hunters to work together with the department to manage deer on a site-specific basis. The program will actively involve members of the public in the collection, analysis, and reporting of deer harvest information and improve management of the deer herd. The department may establish enrollment fees for participation in the program and that money will be credited back to implementation. This is a central recommendation of the report and recommends that the department establish: a) applicability to private and public lands, b) initial areas eligible to participate, c) administration of DMAP, d) funding, e) personnel and training, f) minimum property size to participate, g) fees, h) participation requirements, i) data collection requirements, j) registration of deer harvested on DMAP properties, k) data analysis and reporting, and l) assessment of DMAP effectiveness.
The department does not intend to modify regulations on the method of deer harvest at this time. However if an ACT of the legislature modifies a legal method of harvest while this rule package is being promulgated, and related rule changes are needed, this rule package would implement an ACT of the legislature. Notably, the department is aware that changes to the allowable uses of crossbows are being considered.
The trustee's report generally recommends a more passive approach than current department policy to the management of Chronic Wasting Disease. CWD-related rulemaking will be correspondingly limited in this proposal. However, regulation changes related to disease testing protocol, harvest permits and other hunting regulations may be identified and included if they are consistent with the report. The department establishes separate population goals for deer units that are in a CWD zone. Those goals and methods of population estimation will be modified or eliminated by these rules.
These rules may make other modifications to deer hunting regulations if they can be characterized as simplifications. These may include changes to the allowable hunting hours or allowable guns, ammunition, and other devices.
Chs. NR 11 and 15 related to Closed Areas and Game Refuges
Modifications to Chs.
NR 11 and
15 will likely be needed to update cross references with Ch.
NR 10 which will be modified significantly. The report did not recommend changes to these chapters of administrative code. Additional modifications to these chapters may be made if that assists with regulations simplification or improvement of hunting opportunities.
Ch. NR 12 related to Wildlife Damage and Nuisance Control
Modifications to Ch.
NR 12 will likely be needed to update cross references with Ch.
NR 10 which will be modified significantly. The report did not recommend significant structural changes to the damage program. Additional modifications to this chapter may be made if that assists with regulations simplification or improvement of hunting opportunities.
Ch. NR 13 related to Chippewa Treaty Rights Participants
Chapter
NR 13 is intended to regulate off-reservation treaty rights of treaty rights participants recognized by Lac Courte Oreilles Band v. Voigt,
700 F. 2d 341 (7th Cir. 1983). Modifications to Ch.
NR 13 will likely be needed to update numerous cross references with Ch.
NR 10 which will be modified significantly. The report did not recommend changes to this chapter of administrative code.
Ch. NR 19 related to Miscellaneous Fur, Fish, Game and Outdoor Recreation
Modifications to Ch.
NR 12 will likely be needed to update cross references with Ch.
NR 10 which will be modified significantly. This section also contains regulations for feeding of wild animals and white-tailed deer related provisions which are not directly related to the report. Additional modifications to the chapter may be made if that assists with regulations simplification or improvement of hunting opportunities.
Ch. NR 45 related to the Use of Department Properties
Modifications to Ch.
NR 45 will likely be needed to update cross references with Ch.
NR 10 which will be modified significantly. The report did not recommend specific changes to this chapter of administrative code. However, many regulations in this chapter apply to deer hunters who are using department managed lands. Additional modifications to this chapter may be made if that assists with regulations simplification or improvement of hunting opportunities.
Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Department authority to conduct a variety of habitat and wildlife management activities is established in ss.
23.09 (2) (b),
(d), and
(h),
(k) and
(km), and
(p), Stats. These sections authorize rulemaking related to deer and deer habitat management and: plans and priorities for conservation, game refuges, cooperative forest protection, research, resources inventory, and disease control. These sections authorize many of existing provisions of Ch.
NR 1 (Natural Resources Board Policy), Ch.
NR 11 (closed areas), Ch.
NR 15 (game refuges), and Ch.
NR 45 (use of department properties).
The primary authority to establish hunting regulations for deer and other species is established in s.
29.014, Stats. This section directs the department to establish and maintain open and closed seasons, bag limits, size limits, rest days, and other conditions for the taking of game that conserves the game supply and provides citizens with good hunting opportunities. This section authorizes many of the existing provisions of Ch.
NR 8 (license and permit procedures), Ch.
NR 10 (game and hunting) and Ch.
NR 19 (Miscellaneous Fur, Fish, Game and Outdoor Recreation).
The wildlife damage and nuisance program and rulemaking authority are established in s.
29.889 (2) (b), Stats., which directs the department to establish rules for program eligibility and funding, methods of abating damage, forms and procedures, prorating claims, and record keeping, audits and inspections. This is the authorizing legislation for much of Ch.
NR 12 related to wildlife damage.
Rules related to Chippewa treaty rights (Ch.
NR 13) are promulgated under general authority to establish hunting regulations in s.
29.014, Stats. and these rules are the department's interpretation of how laws must be interpreted or limited in order to comply with the general limitations on state regulatory authority expressed in Lac Courte Oreilles v. State of Wisconsin,
668 F. Supp. 1233 (W.D. Wis. 1987) and the specific limitations expressed in the regulatory phase of the Voigt litigation. (See e.g., Lac Courte Oreilles v. State of Wisconsin,
707 F. Supp. 1034 (W.D. Wis. 1989).
Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
The department estimates that rule and program development will require the equivalent of 5 full time staff people, or 10,400 hours. This estimate includes developing new deer management programs in addition to time spent specifically on rule promulgation.
List with Description of all Entities that may be Affected by the Proposed Rule
White-tailed deer affect nearly every Wisconsin resident in some way. Many of these effects are significant from a recreational, economic, and/or social perspective. A wide variety of groups and individuals will be interested in this proposed rule. Some groups include: Wisconsin Conservation Congress, Great Lakes Indian Fish and Wildlife Commission, Wis Farm Bureau Federation, WI Deer Hunters Assn., The Nature Conservancy, Whitetails Unlimited, WI Bowhunters Assn., WI County Forest Association, WI Woodland Owners Assn., Quality Deer Management Association, Rocky Mountain Elk Foundation, and the Sierra Club.
Groups registered to lobby the Wisconsin legislature within the last year, many registered specifically on these rules, include: WI Bear Hunter's Assoc., White-tails of WI, Safari Club International – WI Chapters, WI~Force, WI Wildlife Federation, National Rifle Assoc. of America, and the Assoc. of WI Snowmobile Clubs.
Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Federal regulations allow states to manage the wildlife resources located within their boundaries provided they do not conflict with regulations established in the Federal Register. None of these rule changes violate or conflict with the provisions established in the Federal Code of Regulations.
Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
The department estimates that the economic impact of these rules will be moderate and, pursuant to
2011 Executive Order 50, will facilitate a 30 day period for comment on a draft economic impact analysis. The comment period will be held in late summer, 2013.
These rules will significantly modify rules that establish the department's habitat and deer harvest management strategies. Examples of the types of changes that could be made include; increased emphasis of habitat management on private land, use of different methods of measuring and estimating deer populations, and new ways to define and achieve desired deer populations or population trends. These rules will result in moderate revisions to regulations that apply to individual deer hunters. Examples of the types of changes that could be made include; eliminating or creating new deer management units, simplified harvest registration procedures, different deer hunting regulations on private versus public lands, and different uses and changes in the availability of antlerless deer harvest permits.
Deer population, harvest, and habitat management affect many entities in this state. A broad description of affected industries includes agriculture, forestry, tourism, and retail. Governments may be impacted by these rules because many do have programs to manage nuisance deer locally. Many non-profit groups are focused on natural resource conservation, wildlife resources, or deer in particular, and may be affected by these rules.
The department anticipates there may be moderate effects on the financial health of industries, governments, and groups. The department anticipates there will be moderate effects of these regulations for individual hunters and landowners. The longer comment period will allow 30 days for affected industries, governments, and groups to prepare comments that will be useful for preparation of the final economic impact analysis.
Affected entities are likely to base their evaluations of economic impact on their opinions of whether-or-not the rules will result in deer population increases, stabilization, or decreases. For instance, agriculture and forest-products interests may benefit from low deer populations and resulting low levels of crop and tree damage. The tourism and retail industries may benefit from high deer populations that result in greater enthusiasm and participation in deer hunting. This rule package will be designed to balance competing interests with a different approach than current rules.
It may be important to note that the department is statutorily prohibited from managing deer populations with regulations that require a hunter to first harvest an antlerless deer before harvesting a buck. The department also lacks rulemaking authority for certain deer hunting season frameworks. These changes to the department's regulatory authority result from recently enacted statutes and they will not be considered as part of an economic analysis prepared for these rules. While deer may have significant positive or negative impacts to different entities, removal of these harvest regulations likely moderates the economic impact of this rule package.
The department anticipates that there will be no or very few implementation and compliance costs for the affected entities. These rules will not establish reporting or compliance requirements or other regulations for small business. A possible outcome of these rules is the elimination of deer registration stations at local businesses throughout the state. The department will summarize the value of registration fees paid by the department to businesses, and related impacts of this voluntary program, in the economic impact analysis.
