7:00 p.m. to 8:00 p.m.
Marathon County, UW Extension Office
212 River Drive, Rooms 1 & 2
Wausau, WI 54403
Tuesday, August 14, 2007
1:00 p.m. to 2:30 p.m.
Wisconsin Dept. of Agriculture
1st Floor, Board Room
2811 Agriculture Drive
Madison, WI 53708
Wednesday, August 15, 2007
7:00 p.m. to 8:00 p.m.
Wisconsin Peninsular Research Station
Conference Room
4312 Hwy 42
Sturgeon Bay, WI 54235
Analysis Prepared by the Dept. of Agriculture, Trade and Consumer Protection
Statutes Interpreted:
Ch.
96, Stats.
DATCP has general authority, under s.
93.07(1), Stats., to adopt rules interpreting statutes under its jurisdiction. DATCP is specifically authorized, under s.
96.15, Stats., to adopt rules to administer the marketing order program under ch.
96, Stats.
Background
The Department of Agriculture, Trade and Consumer Protection (DATCP) administers Wisconsin's agricultural marketing order program under ch.
96, Stats. DATCP may adopt marketing orders for Wisconsin agricultural commodities, with the approval of affected commodity producers. DATCP has adopted marketing orders for cherries, cranberries, corn, milk, mint, soybeans, ginseng and potatoes.
A marketing order imposes assessments on commodity producers. Affected producers elect a marketing board, which spends assessment revenues for purposes specified in the marketing order. Marketing orders may be used to finance market development, research and education. DATCP monitors marketing board activities for compliance with applicable law, including the marketing order.
DATCP has adopted general rules to govern the operation of marketing orders and marketing boards. DATCP must also adopt marketing orders as rules. Affected producers must approve (by referendum) the adoption, amendment or repeal of a marketing order. DATCP may bill a marketing board for administrative services provided to the marketing board.
Rule Contents
This rule does all of the following:
• Amends current rules (ATCP 140) governing all marketing order referenda and marketing board elections:
• Authorizes, but does not require, DATCP to conduct referenda and elections by electronic mail.
• As an alternative to mailing ballots to all eligible producers in a marketing board election (but not a marketing order referendum), authorizes DATCP to notify producers how they may obtain election ballots.
• Amends the cherry marketing order (ATCP 141) to eliminate the requirement of an advisory referendum every 4 years (non-binding advisory referendum asks producers whether they wish to continue the cherry marketing order). A marketing order may be repealed at any time, with or without a non-binding advisory referendum, if the repeal is approved in a formal binding referendum of affected producers.
• Repeals the mint marketing order (ATCP 147).
• Amends the ginseng marketing order (ATCP 148):
• Eliminates the current annual producer assessment based on sales, and replaces it with an assessment based on acres in ginseng production.
• The ginseng marketing board must annually determine the assessment rate, which may not exceed $150 per acre in ginseng production. The ginseng board may require affected producers to report acreage in production.
• The ginseng board may verify reported acreage by aerial photography or other reliable means.
• The ginseng board must annually notify each producer of the assessment amount owed by that producer.
• DATCP no longer determines assessment amounts, but may audit the ginseng board's determination of assessment amounts.
• Eliminates the requirement of an advisory referendum every 5 years (advisory referendum asks producers whether they wish to continue the ginseng marketing order). A marketing order may be repealed at any time, with or without a non-binding advisory referendum, if the repeal is approved in a formal binding referendum of affected producers.
• Makes other minor changes to current rules.
The voting requirement for the amendments to the cherry, ginseng and mint marketing orders as provided in s.
96.08 (1) (b) 3., Stats., is that the applicable referendum most be approved by not less than 50% of the producers voting provided that 50% of the producers on the established list vote in the referendum. For each of the cherry, ginseng and mint marketing orders, the voting requirement identified in s.
96.08 (1) (b) 3., Stats., was used to adopt the original marketing order.
Business Impact
Businesses Affected. In a general sense, this rule affects producers of all agricultural commodities that are covered by an agricultural marketing order or that may be covered in the future. This rule more specifically affects cherry, mint and ginseng producers. Many of the affected businesses are “small businesses." The effects of this rule are generally insignificant.
Agricultural producers; general. This rule gives DATCP more procedural flexibility related to the conduct of marketing order referenda and marketing board elections. Under this rule:
• DATCP may use electronic mail to conduct referenda and elections (DATCP is not required to use electronic mail).
• In a marketing board election (but not a marketing order referendum), DATCP may notify producers how to obtain ballots rather than actually mailing ballots to all producers.
DATCP may use these alternative procedures where appropriate. In appropriate circumstances, the alternative procedures may be at least as effective in encouraging producer participation, and may be substantially cheaper. Cost savings may be passed on to marketing boards and individual producers. Cost savings to individual producers will not be significant.
Mint Producers. This rule repeals the current mint marketing order, and eliminates the producer assessments associated with that order. There may be some cost savings to individual mint producers, but the savings will be insignificant. Currently, there are only 14 mint producers in Wisconsin.
Cherry Producers. This rule repeals a current marketing order provision that requires an advisory referendum of cherry producers every 4 years, to determine whether they support continuation of the marketing order. The repeal will save some costs for the marketing board and affected producers. The savings for individual producers will not be significant.
Ginseng Producers. This rule requires ginseng marketing order assessments based on acres in production, rather than sales. Sales assessments are difficult to collect, because most buyers are outside the United States. This rule will charge assessments based on reported acres in production (verified by aerial photography or other reliable means). Assessments based on acres in production will be more fair and reliable. Some individual assessments will go up, but others will go down. Overall assessments will increase, but there will not be a major financial impact on ginseng producers.
This rule repeals a current marketing order provision that requires an advisory referendum of ginseng producers every 5 years, to determine whether they support continuation of the marketing order. The repeal will save some costs for the marketing board and affected producers. The savings for individual producers will not be significant.
Federal Regulation
The United States Department of Agriculture (USDA) administers an agricultural marketing order program, under which USDA has broad authority to regulate prices and production, as well as to charge assessments for market development, promotion, research and education. USDA has adopted marketing orders for some of the same commodities covered by Wisconsin marketing orders (including potatoes, corn, milk and soybeans). However, the state marketing orders do not directly duplicate or conflict with the federal marketing orders.
Surrounding State Regulation
Surrounding states have marketing orders for some, but not all, of the commodities covered by Wisconsin marketing orders. For example, Illinois, Iowa, Minnesota and Michigan have marketing orders for corn. Illinois and Iowa also have marketing orders for soybeans, milk and other commodities. Nearly all United States ginseng is grown in Wisconsin, so no other states have ginseng marketing orders.
Fiscal Impact
The proposed rules will not have a significant fiscal impact on DATCP and will have no fiscal effect on local government.
Notice of Hearing
Employee Trust Funds
A public hearing on this proposed rule will be held on Wednesday, August 1, 2007, at 9:30 AM in Conference Room GB at the offices of the Department of Employee Trust Funds, 801 West Badger Road, Madison, Wisconsin. Persons attending should come to the reception desk up the stairs (or elevator) from the main entrance.
Analysis Prepared by Dept. of Employee Trust Funds
Statute Interpreted: Sections
40.03 (1) (j),
(6) (I), (7) (f), (8) (f) and 40.80 (2g), Stats., concerning the hearing authority of the Employee Trust Funds, Group Insurance, Teachers Retirement, Wisconsin Retirement and Deferred Compensation Boards, respectively.
Explanation of Agency Authority: By statute, the DETF Secretary is expressly authorized, with Board approval, to promulgate rules required for the efficient administration of any benefit plan established in ch.
40, Stats. Also, each state 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.
Related Statute or Rule: None.
Plain Language Analysis
The purpose of this rule is to allow the five Boards hearing appeals of determinations made by the Department of Employee Trust Funds (DETF) to rely upon hearsay evidence to make factual findings in administrative hearings to the same extent permitted in state court.
The present s.
ETF 11.12 (2) (b) prohibits a Board from basing any finding of fact on hearsay. The proposed rule eliminates that absolute prohibition. This change permits the Board hearing the appeal to base its findings of fact upon hearsay when that hearsay is corroborated by other non-hearsay evidence, or in any other circumstances in which Wisconsin courts may determine that reliance upon hearsay evidence is permissible in administrative proceedings. The proposed rule expressly allows the Boards to rely upon hearsay evidence as the basis for their factual findings to the same extent permitted in hearings in Wisconsin courts.
Comparison with Federal Regulations
No existing or proposed federal regulations apply to the evidentiary standards that may be applied by the Boards in hearing administrative appeals of determinations made by the Department of Employee Trust Funds.
Comparison with Rules in Adjacent States
Although there are a number of governmental retirement plans in Illinois, Iowa, Minnesota and Michigan, their administrative rules are not directly relevant to interpreting the Wisconsin statutes governing the Wisconsin Retirement System. Governmental plans differ in the degree to which the terms of the plan are established by enabling legislation or left to subsequent administrative rulemaking or other means.
Illinois. The various governmental retirement systems in Illinois have not adopted administrative rules specifically concerning hearsay evidence in their administrative proceedings. Other state administrative rules deal with hearsay in different ways. For example:
• The Department of Children and Family Services mandates that previous statements by the child relating to abuse or neglect must be admitted as hearsay exceptions. Ill. Admin. Code tit. 89, §§
336.120 b) 10) and 412.60 g) 1) B).
• The Illinois Gaming Board permits hearsay to support a finding of the Administrative Law Judge if it is the best evidence available, has sufficient indicia of trustworthiness and reliability and is of the type reasonably and customarily relied on in the gaming industry. See Ill. Admin. Code tit. 86, § 3000.430 a).
• The Department of Central Management Services appeal rules provide that the technical rules of evidence do not apply. Any material evidence, including hearsay, may be accepted, but the finder-of-fact must weigh the hearsay nature of such evidence. See Ill. Admin. Code tit. 14, §
105.60 l) 6).
• In consumer protection hearings by the Attorney General any relevant evidence which is not privileged is admissible, whether or not the evidence is hearsay or would be inadmissible in a court of law. See Ill. Admin. Code tit. 14, §
450.20 b) 3).
• The State Board of Elections permits hearsay evidence to be admitted into evidence if the hearing examiner deems it reliable and trustworthy. See Ill. Admin. Code tit. 26, §
150.115 a).
On the other hand, some administrative rules appear to discourage hearsay evidence with general statements that the common rule against hearsay will be deemed substantive, not merely technical, for hearing purposes. For examples, see Ill. Admin. Code tit. 41, §
123.180 b)
[Office of the State Fire Marshall], Ill. Admin. Code tit. 56, § 2605.360 b)
[Department of Commerce and Economic Opportunity] and Ill. Admin. Code tit. 68, § 1110.180 b)
[Department of Financial and Professional Regulation]. In many cases, however, the agency's rules then go on to recognize exceptions to this exclusion of hearsay evidence. For instance:
• The State Fire Marshal's rules for contested cases involving boiler and other pressure vessels state that hearsay is not admissible –– unless the statement is subject to a hearsay exception under Illinois law or has circumstantial guarantees of trustworthiness. The probative value of the hearsay statement must also outweigh any prejudice resulting from an inability to cross-examine the maker of the statement. See ll. Admin. Code tit. 41, §
123.220 b). The rules also identify the kinds of statements which will not be viewed as hearsay, including certain kinds of prior statements made by the witness and admissions made by the other party. See Ill. Admin. Code tit. 41, §
123.220 c).
• The Department of Commerce and Economic Opportunity, the Department of Financial and Professional Regulation and the Illinois Comptroller have taken similar approaches virtually identical to the State Fire Marshall's. See Ill. Admin. Code tit. 56, § 2605.340 d) and e), Ill. Admin. Code tit. 68, § 1110.220 b) and c) and Ill. Admin. Code tit. 74, §
310.220 b) and c), respectively.
• Language recognizing the hearsay exceptions in Illinois law or circumstantial guarantees of trustworthiness (and of probative value outweighing the prejudice of the inability to cross-examine) is also found in the Department of Children and Family Services rules, although those rules do not contain the list of statements not considered hearsay. See Ill. Admin. Code tit. 89, §
412.60 g) 1) C).
• Under Ill. Admin. Code tit. 56 § 2830.335 c), the Department of Employment Security provides that, in actions pertaining to the re-issuance of benefit checks, hearsay which was not objected to may nevertheless not form the sole basis for a decision, if the claimant testified under oath to the contrary. The sole exception is if the Department's special agent finds that the claimant's testimony is incredible, inconsistent or inherently improbable.
• The Illinois Department of Revenue, in Ill. Admin. Code tit. 86, §
200.155 a), provides that hearsay may not be admitted, except to the extent that it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.
Iowa. The only Iowa administrative rules expressly concerning hearsay evidence in administrative proceedings allow findings to be based on hearsay, regardless of whether the evidence would be admissible in a jury trial, if the evidence is of a kind that reasonably prudent persons are accustomed to rely upon for the conduct of their serious affairs. See Iowa Admin. Code r. 193-7.26(7) [contested cases concerning professional licensing and regulation], Iowa Admin. Code r. 263-9.10(4)(intro.) [City Development Board involuntary development actions], and Iowa Admin. Code r. 721-25.24(7) [Secretary of State administrative complaints regarding elections].
Michigan. The State Employee Retirement System does not yet have administrative rules. The Michigan Administrative Code contains no rules relating specifically to hearsay.
Minnesota. The Minnesota governmental retirement systems have not adopted administrative rules specifically concerning hearsay evidence. Other state administrative rules deal with hearsay in a fairly uniform way.
Under Minnesota's Office of Administrative Hearings, the rules governing a variety of different kinds of hearings, including contested cases, allow hearsay evidence with probative value to be admitted into evidence. See Minn. R. 1400.7300 subp. 1., Minn. R. 1400.8601 subp. 1., and Minn. R. 1405.1700 subp. 3. The rules on hearings by other state agencies also permit receiving any evidence, expressly including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs. See Minn. R. 3310.2922 [unemployment compensation procedure], Minn. R. 3525.4320 [Dept. of Education disabled children hearings], Minn. R. 5510.1910 subp. 9 [Public employment labor relations], Minn. R. 7897.0170 subp. 3 [Racing Commission], Minn. R. 9200.4800 subp. 19 A. [Environmental quality board].
The rules of two boards specify that hearsay evidence may be used to supplement or explain direct evidence, but is insufficient to support a finding in itself, unless the hearsay would be admissible over objection in a civil action. See Minn. R. 5601.3145 [Board of Physical Therapy] and Minn. R. 5615.0900 subp. 3 [Board of Medical Practice].
