2. Description of Existing Policies Relevant to the Rule and of New Policies Proposed To Be Included in the Rule and an Analysis of Policy Alternatives; the History, Background, and Justification for the Proposed Rule
Prior to Act 77, Wis. Stat. s.
941.26 (4) (i) 2. required DOJ to promulgate rules governing standards for pepper spray devices, including percentage of active ingredients, range of spray, and weight. In addition, Wis. Stat. s.
941.26 (4) (j) 2. required DOJ to promulgate rules governing safety packaging for pepper spray devices. The statute also made it a Class A misdemeanor to sell a pepper spray device that did not satisfy DOJ's safety rules or include the required packaging.
See Wis. Stat. s.
941.26 (4) (i) 1. and
(j) 1. (2011-12).
Act 77 has repealed Wis. Stat. s 941.26 (4) (i), including both subparagraphs 1. and 2. DOJ's authority to promulgate rules governing standards for pepper spray devices has been eliminated, as has the prohibition on the sale of pepper spray devices that do not meet those standards.
Act 77 also repealed Wis. Stat. s. 941.26 (4) (j) 2., thereby eliminating DOJ's authority to promulgate rules governing safety packaging for pepper spray devices. The remaining portions of Wis. Stat. s.
941.26 (4) (j) have been revised and amended so that it is now a Class A misdemeanor to sell a pepper spray device that does not come with a proper label and written safety instructions. The previous requirement prohibiting sale of a device that did not comply with DOJ's safety packaging rules has been eliminated.
In addition, Act 77 created Wis. Stat. s.
941.26 (4) (m), which expressly prohibits DOJ from promulgating or enforcing any rule that regulates pepper spray devices.
It is clear from these provisions that Act 77 has eliminated DOJ's former rulemaking authority under Wis. Stat. s.
941.26 and has rendered legally unenforceable Wis. Admin. Code ch.
Jus 14. That chapter of the administrative code is without legal effect, and DOJ has no further rulemaking responsibilities vis-à-vis pepper spray devices.
To reflect the public policy of Wis. Stat. s.
941.26 (4) (m) and to eliminate possible confusion to the public of having Wis. Admin. Code ch.
Jus 14 in the administrative code, DOJ proposes this permanent rule.
3. Statutory Authority for the Rule (Including the Statutory Citation and Language)
A. Wis. Stat. s.
227.10 (2): “No agency may promulgate a rule which conflicts with state law."
DOJ finds that Wis. Admin. Code ch.
Jus 14 conflicts with state law in Wis. Stat. s.
941.26 (4) (m). DOJ's repeal of Wis. Admin. Code ch.
Jus 14 will effectuate the public policy in Wis. Stat. s.
227.10 (2).
(2) Rule-making authority is expressly conferred on an agency as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
This statute confers on DOJ the power to determine whether existing administrative rules interpreting the statutory provisions created and amended by Act 77—rules which are no longer to be enforced or administered by DOJ—are necessary to effectuate the purpose of Act 77. DOJ finds that Wis. Admin. Code ch.
Jus 14 is no longer necessary to effectuate the purpose of Act 77, and in fact would conflict with Act 77. Since DOJ finds that Wis. Admin. Code ch.
Jus 14 is no longer necessary and is in fact contrary to public policy, DOJ has the authority to promulgate an administrative rule to repeal the existing rules, as long as the proposed rule does not exceed the bounds of correct interpretation of the governing statutes.
4. Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
It is estimated that state employees will spend approximately 8 hours on the rulemaking process for the proposed rule, including research, drafting, and compliance with required rulemaking procedures.
5. Description of all Entities that may be Impacted by the Rule
DOJ does not believe that any entities will be impacted by the rule.
6. Summary and Preliminary Comparison of Any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
DOJ is not aware of any existing or proposed federal regulation that is intended to regulate these activities, particularly since the purpose of the instant rule is to repeal an existing administrative code chapter.
7. Anticipated Economic Impact of Proposed Rules
DOJ anticipates that the proposed rule will have minimal or no economic impact.
Contact Person
Assistant Attorney General Clayton P. Kawski, (608) 266-7477
Natural Resources
Fish, Game, etc., Chs.
NR 1—
(DNR # FH-16-14(e))
The statement of scope was approved by the governor on September 22, 2014.
Rule No.
Relating to
Lake trout harvest limits in Lake Superior.
Rule Type
Emergency.
1. Finding/Nature of Emergency
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 2014-15 lake trout harvest seasons.
2. Detailed Description of the Objective of the Proposed Rule
The purpose of the emergency rule is to amend Lake Superior lake trout harvest limits. 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 recreational anglers.
The 10-year State-Tribal Lake Superior Agreement specifies annual allowable lake trout tribal and commercial harvests, defines refuges and special fishing areas, and establishes other terms and arrangements for state and tribal commercial fishing. The Agreement was last signed among the Department of Natural Resources and the Red Cliff and Bad River Bands of Lake Superior Chippewa in 2005, and has been amended four times, most recently in October 2013. Negotiations in September 2014 recommended new lake trout harvest limits that need to be put in place by emergency rule for the 2014-15 open season. The Wisconsin State-Tribal Technical Committee, which is made up of Department, Red Cliff, and Bad River biologists, has recommended a reduction in lake trout commercial harvest for the 2014-15 season.
Harvest limits are created for recreational fishers in Lake Superior as well in order to sustain and manage the total population. The proposed rule would limit the total number of fish that are harvested by recreational fishers, which is measured by department creel surveys.
The rule will:
• Modify the commercial fishing harvest limits for lake trout on Lake Superior.
• Revise rules used to determine the footage of gill net that may be set in the water by each fisher, also called “fishing effort." No commercial fisher may set more than his or her allowable gill net effort during the lake trout open season, based on a formula to determine each commercial fisher's allowable gill net effort in feet of net. When targeting whitefish with gill nets, 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. However, after fishers have used their allowable gill net effort they can shift to using trap nets, which are not subject to the same effort restrictions governing gill nets.
•
Allow the department to enforce a reduced recreational daily bag limit and/or size limit for lake trout in the Apostle Islands region of Lake Superior.
Additional rule changes may be pursued which are reasonably related to those discussed in this scope.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
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 because of 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, successive versions of a statistical catch-at-age model also suggest that previous estimates of lake trout abundance were inflated. This combination of increased harvest and re-scaled estimates of lake trout abundance has resulted in total allowable catch recommendations to decline. While relatively stable abundances of spawning lake trout suggest that this decline is still reversible, action needs to be taken to stop the lean lake trout population's decline. The continued, persistent decline of the lake trout population necessitates harvest reductions in order to ensure a sustainable lake trout fishery over the long-term.
Rule alternatives are not being considered because the process is guided by the 2005 State-Tribal Lake Superior Agreement.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
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. It also specifies that the limitations on harvests must be based on the available harvestable population of fish and in the wise use and conservation of the fish, so as to prevent over-exploitation.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
Employees may spend up to 200 hours developing the emergency rule. It will require in-state travel to meet with tribal negotiators.
6. List with Description of all Entities that may be Affected by the Proposed Rule
• State-licensed commercial fishers on Lake Superior
• Recreational fishers on Lake Superior
• Recreational fishing guides and charter fishing businesses
• Commercial fishers licensed by the Red Cliff Band of Lake Superior Chippewa
• Commercial fishers licensed by the Bad River Band of Lake Superior Chippewa
State-licensed and tribal commercial fishers will 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.
7. 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
No federal regulations apply. None of the rule proposals violate or conflict with federal regulations.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
The rule will impact the harvest of lake trout and other species by state-licensed commercial fishers, tribal fishers, and sport fishers. Because of the decline in lake trout populations, all of these three groups that fish in Lake Superior would have a reduction in overall harvest limits. The rule may alter the amount of gill net effort commercial fishers can use to target whitefish because lake trout are frequently caught in the same nets, potentially reducing harvest and income. However, the impact can be buffered if fishers shift to using trap nets, which are not subject to the same effort restrictions governing gill nets. Sport fishers will be affected by a change in the lake trout daily bag limit or size limit in order to reduce overall harvest, but this is not expected to cause any expenditures for sport fishers.
The rule imposing harvest reductions is necessary in order to ensure a sustainable lake trout fishery over the long-term, an economic and natural resource benefit for all affected. The rule may have a moderate economic impact in the Lake Superior region, but an exact amount of impact is unknown at this time. The Department will conduct an economic impact analysis to gather comments from any individuals, businesses, local governments, or other entities that expect to be affected economically by the rule change. In addition, the Department is planning to meet with the state licensed commercial fishers in September 2014 and to hold a public meeting in November 2014 to discuss the rule's lake trout quotas, allocations, and options for the 2014-15 lake trout management actions on Lake Superior, before the rule is finalized.
The proposed rule will have an effect on small businesses, but does not impose any compliance or reporting requirements nor would any design or operational standards be contained in the rule.
9. Anticipated Number, Month, and Locations of Public Hearings
In November 2014, prior to rule implementation, the Department is planning to hold a public meeting in Ashland to discuss the rule's lake trout quotas, allocations, and options for the 2014-15 lake trout management actions on Lake Superior. The Department anticipates holding one public hearing in the month of February 2015, or within 45 days after the emergency rule is in effect. Hearing city will be: Ashland, WI.
The Department will hold the hearing in this location to collect additional public input on the lake trout harvest quota.
Contact Person
Terry Margenau, Lake Superior Fisheries Supervisor, 715-779-4035 ext. 15.
Safety and Professional Services
Professional Services, Chs.
SPS 1—299
The statement of scope was approved by the governor on September 19, 2014.
Rule No.
Relating to
Registered sanitarian examination requirements.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A
