DATCP Docket: 20-R-03
Final Rule Draft
October 14, 2021
THE DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION’S PROPOSED ORDER TO ADOPT PERMANENT RULES
PROPOSED ORDER
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes an order to amend ATCP 16.08 (1) and (2), and 16.12 (6) relating to the dog sellers and dog facility operators.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
Statutes Interpreted: Wis. Stat. § 173.41. Explanation of Agency Authority
Wis. Stat. § 173.41 (3) (c) authorizes the Department to promulgate a rule to increase the statutorily provided license fees if necessary to cover the cost of administering s. 173.41, Stats. Wis. Stat. § 173.41 (6) (d) authorizes the Department to specify reinspection fees that differ from the amount provided by statute. Wis. Stat. § 173.41 (14) authorizes the Department to promulgate rules in consultation with an advisory committee established under par. (b). Related Statutes and Rules
Plain Language Analysis
The Dog Sellers and Facilities Program was created in 2011 to ensure the welfare of dogs and provide consumer protection. The Department licenses and inspects about 500 facilities under this program. The minimum licensing fees were set when the program began and have not changed since 2011.
The program revenue appropriation (appropriated by Wis. Stat. § 20.115 (2) (j)) does not have adequate revenue to recover costs. The Department is not able to reduce expenditures to the level of current revenues without resulting in a failure to fulfill statutory requirements. The Department convened an ATCP 16 Advisory Committee to advise the Department in relation to the Statement of Scope (SS 093-20), pertaining to license fees and reinspection fees for dog sellers and dog facility operators. The Committee was comprised of representatives from each of the groups under Wis. Stat. § 173.41 (14) (b). This rule proposal includes a 100% license fee increase for shelter/control facilities, a 120% license fee increase for all other entities, and a 167% reinspection fee increase. The table below shows the current and proposed license and reinspection fee amounts, the amount of each change, the number of licensees in each category, and the average reinspection count each year.
The proposed fees would ensure recovery of annual program costs and would gradually eliminate the current and projected deficit over five years. Without the proposed fee increase, the appropriation would continue to operate in a negative cash balance until a different change occurs, such as the creation of an alternative funding source or a statutory change. The Department would continue to report the negative cash balance to the Joint Committee on Finance.
Summary of, and Comparison with, Existing or Proposed
Federal Statutes and Regulations
The United States Department of Agriculture (USDA) licenses some businesses that breed or broker dogs. As of March 2020, there are 86 USDA-licensed dog breeders (Class A) and 10 USDA-licensed dog brokers (Class B) in Wisconsin. These numbers include some, but not all, businesses that are also licensed as dog sellers by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP).
USDA and DATCP have different criteria for determining whether an entity needs to be licensed, as well as different minimum facility requirements. USDA does not license retail pet stores and does not license breeders with four or fewer breeding females. DATCP licenses persons who operate an animal shelter, animal control facility, dog breeder, dog breeding facility, dog dealer, or out-of-state dog dealer. Among other criteria defined in Wis. Stat. § 173.41 (1), these are entities that shelter or sell 25 or more dogs in a year. Summary of Comments Received during Hearing and Comment Periods
Preliminary Public Hearing and Comment Period on the Statement of Scope
The Department held a preliminary hearing on the statement of scope (SS 093-20) on August 20, 2020, with comments open until August 27, 2020. The hearing was held remotely. The Department received two comments during the preliminary hearing. Both comments requested that the Department exempt shelter/control facilities from a fee increase. No written comments were received.
