The statement of scope for this rule, SS 110-20 was approved by the Governor on August 11, 2020, published in Register No. 776A3 on August 17, 2020, and approved by the Natural Resources Board on October 28, 2020. This rule was approved by the Governor on July 27, 2021. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING AND RECREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal and recreate NR 20.65 relating to guide licenses and reporting requirements and affecting small business. |
FH-08-20
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Sections 23.09 (2) (intro.) and 23.09 (2) (km), Stats., have been interpreted as authorizing the department to promulgate rules and conduct studies, investigations, and surveys for the protection and use of natural resources. Sections 29.014 (1) and 29.041, Stats., have been interpreted as authorizing the department to establish fishing conditions and regulate fishing on inland, outlying and boundary waters to provide continued opportunities for good fishing. Sections 29.411 and 29.512 (1), Stats., have been interpreted as authorizing the department to establish reporting requirements for licensed guides. 3. Explanation of Agency Authority:
Section 23.09 (2) (intro.), Stats., authorizes the department to promulgate rules, conduct studies, investigations and surveys, and establish services to carry out the conservation purposes outlined in s. 23.09 (1), Stats., including the protection, development and use of natural resources. Section 23.09 (2) (km), Stats., further authorizes the department to “develop an information system to acquire, integrate and disseminate information” on aquatic resources. Guide reporting provides an important source of information on sport fish harvest, which can be incorporated into study models and quotas for the sustainable use of fishery resources. By developing a more effective information system to collect reporting data from guides, the department will develop a more robust foundation for future studies relating to Great Lakes game fish populations and harvest. The department is directed under s. Section 29.014 (1), Stats., 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 29.512 (1), Stats., requires any person guiding others in fishing in exchange for compensation or reward to obtain a guide license, and requires guide licensees to comply with the requirements of ch. 29, Stats. Subject to s. 29.411, Stats., guides must cooperate with a department employee conducting a fish census. These two provisions provide that the department may obtain fish census information from licensed guides. The department conducts fish censuses for individual anglers as well to gain information on fish harvest and fishing effort. 4. Related Statutes or Rules: Section 29.514 (2), Stats., requires records of the number of each type of fish taken under a Great Lakes sport trolling license for trout and salmon, and authorizes the department to specify other information that sport trolling licensees must report for guiding on outlying waters. 5. Plain Language Analysis:
Under existing rules, licensed guides in the Great Lakes are required to report fish harvests, but the exact data requested and form of submission are not clear, which creates challenges for effective enforcement. Section NR 20.65, Wis. Admin. Code, requires all guides operating in the outlying waters of Lake Superior, Lake Michigan, and Green Bay to report the quantity and variety of fish taken and other information relating to fishing activities, as required by the department. The rule requiring Great Lakes licensed fishing guides to report as required by the department has been in place since 1974, but has never included specific details on the types of information that the department requires, timelines for reporting, or methods for reporting. Because the existing reporting requirements in s. NR 20.65, Wis. Admin. Code are very general, fishing guide reporting is not consistent and therefore does not provide useful data that can be used for fisheries modeling, management and law enforcement. Additionally, the existing rule does not provide a framework to encourage compliance, and therefore guide reporting compliance is very uncertain. Unreported trips may account for a substantial proportion of the total guided trips, resulting in underreporting of fish caught and thus limiting the data available for managing those species. This permanent rule would clarify requirements for fishing guide reporting on Lake Michigan, Lake Superior, Green Bay, and tributaries, including specific waters for which guide reporting may be required each year and methods and timelines for submitting reports to the department, such as electronic submission. This rule will also include the types of information to report (when and where reporting is required), including the name of the person completing the report, the date and location of the guided fishing trip, the number of hours per fishing trip, details on fish caught by the clients, number of people fishing during a trip, and other similar information. This rule will also establish a streamlined procedure for making the list of species, waterbodies, and time of year for which the department is requiring reporting easily available to fishing guides. The additional reporting data collected under this rule will be invaluable for managing populations of popular game fish, including lake whitefish, yellow perch, lake trout, muskellunge, smallmouth bass, walleye, and other species in the sport fishery.
SECTION 1 repeals and recreates the Great Lakes guide reporting rules, encapsulated in s. NR 20.65, Wis. Admin. Code, in order to restructure the entire section with the updated, more specific guide reporting requirements. Many of these requirements are already in place for licensed charter captains that guide anglers in sport trolling for trout and salmon under s. 29.514, Stats., and were described in general terms under the previous format of s. NR 20.65, Wis. Admin. Code. This section creates a definitions section that applies specifically to s. NR 20.65, Wis. Admin. Code, including definitions for guide, direct, assist, electronic guide reporting system, the Great Lakes, fishing guide, and fishing trip. The definitions of guide, direct and assist are derived from dictionary terms and applied to the relationship between fishing guides and clients. “Guide,” “direct,” and “assist” are terms used in s. 29.512 (1), Stats., so these definitions provide clarity regarding who must report. A definition of “fishing guide” is important for distinguishing fishing guides that provide guiding services for open water fishing or ice fishing from other guides licensed under ch. 29, Stats., and to clarify that people that provide certain services, such as renting out fishing gear or boats for an angler’s independent use without providing any additional guiding, assisting or directing, are not considered to be fishing guides. This definition will help reduce the ambiguity for when a license and reporting is required. This section also describes the types of information that must be reported, the frequency of reporting, and departmental procedures for notifying the public of the annual reporting requirements. After each guided fishing trip, fishing guides will be required to report their name and customer ID number and the names and customer ID numbers of any other fishing guides participating in the trip, the date of the guided trip, the location fished, the number of anglers guided during the trip, the total number of hours fished, information on fish caught as specified on the report form, such as the species, number kept, and how many were tagged fish, and other information required to soundly manage the species taken. In cases where multiple guides participate in a single fishing trip, this rule will allow just one of the guides to submit the full report, with the other guides submitting an abbreviated report, to ensure compliance and accuracy while avoiding duplicative reporting data. Furthermore, this rule will enable employers of fishing guides to fill out the reports on the guides’ behalf, as long as the employer obtains a guide license and the employer and employed guides apply for and receive authorization from the department for the employer to report.
The department will annually specify the waters of the Great Lakes and tributaries, species, and time frame for which reporting is required, to tailor guide reporting to the species and areas for which data are needed. As a result, some fishing guides may not be required to report during certain years or certain times of the year. The department will make this information available to licensed guides on December 1, prior to the start of the ice fishing season each year, and the reporting requirements will go into effect on January 1 of the upcoming year.
Finally, this rule establishes the methods required for fishing guide reporting. The intent is to require electronic reporting, which provides more accurate data more quickly and easily than paper reports. Most licensed fishing guides in the Great Lakes already have a cell phone or other electronic device with which to enter the trip reports. The department may utilize an existing electronic reporting system to collect the reports. This rule would require guides to enter their reports into the electronic reporting system within 24 hours of completion of the fishing trip. If the electronic system is down, or if the guide cannot access the system due to an electronic device malfunction, the guide would be required to report each trip on a paper form and complete an electronic submission when the system is again functional or the guide is within cell phone range. Fishing guides would be required to retain paper records and present them to a department representative upon request.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
No federal regulations apply. States possess inherent authority to manage the fishery and wildlife resources 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 received no comments during the preliminary public hearing, nor during the accompanying comment period.
8. Comparison with Similar Rules in Adjacent States:
In Michigan, charter captains (both sport trolling charter captains and those using other fishing methods) in the Great Lakes are required to submit monthly reports to the Michigan Department of Natural Resources using an electronic system. The reports contain information on lake fished, date, specific location and hours fished, total number of anglers, total catch of major species, targeted species, and sea lamprey presence on certain salmonids. The Michigan DNR collects this data by sending a notification of reporting requirements to charter captains either by email or by hard-copy mailing, and then follows up with an additional postcard or mail notification and law enforcement contacts for those charter captains that have not yet submitted reports. This approach resulted in a 99 percent compliance rate in 2019-20201.
