DATCP Docket No. 15-R-11
Rules Clearinghouse No. ___
Proposed Hearing Draft
December 14, 2015
PROPOSED ORDER
OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin department of agriculture, trade and consumer protection hereby proposes the following rule to repeal ATCP 1.03(2) (b) 1., 2. and (Note), and 3.; and to amend ATCP 1.03(2) (b) and 1.05(1); relating to who may issue a special order within the department.
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Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (DATCP) proposes a rule revision for ch. ATCP 1, Wis. Adm. Code, to allow division administrators or staff to issue most of the special orders under s. ATCP 1.03(2), Wis. Adm. Code. This will allow for clarification of DATCP’s Secretary’s responsibility to hear any appeal of a special order under s. ATCP 1.06, Wis. Adm. Code. The proposed rule also amends s. ATCP 1.05(1) and (3) (f) to clarify that, if the division administrator is designated to sign a special order, then the complaint seeking the special order must be signed by a different designee within the division. Statutes Interpreted
Statute Interpreted: ss. 88.11(7), 93.06(7) and (8), 93.18, 94.645(4), 94.71(3) (c), 94.73(2), 97.12(3) (a), 100.19(3), 100.20(3), 100.201(9) (b), 100.21(4), 100.22(4) (a), 100.30(5) (a) or 126.85, Stats. Statutory Authority
Explanation of Statutory Authority
DATCP has broad authority under s. 93.07(1), Stats., to adopt rules needed to implement laws under its jurisdiction. DATCP has specific authority, under the provisions cited above, to adopt rules related to administrative orders and contested cases. Related Statutes and Rules
DATCP administers a wide range of statutes, including chs. 88, 91 to 100, 126 and 136, Stats. In the administration of these statutes, DATCP may issue administrative orders such as license suspensions, administrative injunctions (e.g., orders prohibiting unfair business practices), hazardous product bans, holding orders to prohibit the distribution of adulterated food or commodities, plant and animal quarantine orders, orders condemning adulterated food or diseased animals, and a variety of other orders specified by statute. Plain Language Analysis
Currently, under s. ATCP 1.03 (2), Wis. Adm. Code, some types of orders may be issued by DATCP’s division administrators or staff, while others may only be issued by DATCP’s Secretary or designee. Generally, all of these orders may be appealed under s. ATCP 1.06, Wis. Adm. Code. The authority to grant or deny a request for hearing rests with the Secretary, under s. ATCP 1.06 (3), Wis. Adm. Code. The Secretary may choose to be the decisionmaker in an informal hearing. In addition, the final decisionmaker for any contested case is either the Secretary, or a designated final decisionmaker appointed by the Secretary, as defined in s. ATCP 1.01 (13), Wis. Adm. Code. If the Secretary, or other appointed final decisionmaker, is the only person who may issue an initial special order, the Secretary is precluded from exercising appellate jurisdiction that is a specific statutory duty of the Secretary. The Secretary has this appellate jurisdiction to ensure that decisions in individual cases, while conforming to the law, are consistent with similar past cases and harmonized with broader, important public policies also within the Secretary’s jurisdiction. These authorities granted to the Secretary should not be abrogated by a rule which limits, in large part, the Secretary’s roles as appellate decisionmaker harmonizing final decisions with public policies. If the rule is amended, allowing special orders to be issued by the division administrator, the Secretary may then exercise the duty to oversee any division’s action by granting and deciding an informal hearing or contested case hearing, if the special order is appealed. The one special order that will continue to be signed by the Secretary or his designee, and not by the division, is an order determining claims in a recovery proceeding, under s. ATCP 1.08, Wis. Adm. Code. Pursuant to subch. VII of ch. 126, Wis. Stats., the Division of Trade and Consumer Protection initiates the proceeding and drafts a proposed order. Only the Secretary or appointed final decisionmaker may sign the final order in these cases, even where a contested case hearing is not needed. These claims determination orders are always a final order of DATCP, as are all decisions in other contested case proceedings and all are issued by the Secretary or final decisionmaker, pursuant to § 227.47 (1), Stats. In addition, if the division administrator may be designated to sign an initial special order, the division administrator must also designate another person to sign the complaint seeking the special order. The proposed rule makes this amendment to the rule on division complaints.
Summary of, and Comparison with Existing or Proposed Federal Statutes and Regulations
A variety of federal regulations govern procedures for federal administrative orders. However, none of those regulations has a direct bearing on this rule.
Comparison with Rules in Adjacent States
Surrounding states, including Illinois, Indiana, Iowa, Michigan and Minnesota, have their own procedural regulations related to administrative “contested cases” in those states. None of those regulations has a direct bearing on this rule. Wisconsin is generally regarded as having more well-developed “contested case” procedures and standards than most other states.
Summary of Factual Data and Analytical Methodologies
This rule does not depend on any complex analysis of data. This rule makes minor changes to current rules.
Effect on Small Business
This rule change is anticipated to have no effect on small business. To the extent that the proposed rule allows the Secretary to fully exercise his or her appellate jurisdiction, this may have a positive impact in having the Secretary be able to review special orders in light of harmonizing, within the law, a final decision in a case, involving a small business, with broader public policies on issues involving small businesses.
DATCP Contact
Cheryl Daniels, Assistant Legal Counsel
Office of the Secretary
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
