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Related rules and statutes
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.
Background
An impartial administrative law judge (ALJ) presides over a "contested case" hearing. DATCP is currently in the process of transferring its ALJ functions to the department of administration, division of hearings and appeals. ALJs from the division of hearings and appeals will conduct DATCP "contested case" hearings, subject to ch. 227, Stats., and ATCP 1. DATCP will pay the division of hearings and appeals for the ALJ services.
The DATCP Secretary or designee typically makes the final decision in a "contested case," after reviewing the ALJ's proposed decision. The final decision is subject to judicial review, as provided in ch. 227, Stats.
Rule content
Administrative Law Judge
Under current rules, the DATCP secretary may appoint an ALJ to hear a DATCP "contested case." This rule clarifies that the secretary may appoint an ALJ from the department of administration (division of hearings and appeals) or another state agency, with the agreement of that agency. An ALJ must conduct a DATCP "contested case" according to DATCP procedural rules in ATCP 1.
Producer Security; Recovery Proceedings
DATCP currently administers an agricultural producer security program under ch. 126, Stats., to protect agricultural producers against financial defaults by grain warehouse keepers, grain dealers, milk contractors and vegetable contractors. In the event of a default, DATCP may initiate a recovery proceeding to determine the amount of producer claims allowed under the producer security program. The recovery proceeding is conducted as a "contested case" according to ch. 126, Stats., and ATCP 1. This rule updates ATCP 1 to incorporate current procedures and terminology under ch. 126, Stats.
"Contested Case" Hearing Requests and Assignments
This rule clarifies current procedures for requesting a "contested case" hearing, and for granting or denying a hearing request, consistent with current standards under ch. 227, Stats. The clarified procedures will help DATCP coordinate "contested case" hearings and ALJ assignments with the department of administration, division of hearings and appeals.
Under this rule, as under current rules, the DATCP secretary will make the initial decision to grant or deny a "contested case" hearing request, and will issue a written notice to the parties. Under this rule, the secretary must grant or deny a "contested case" hearing request within 30 days after a complete request is filed with the secretary (compared to 20 days under current rules).
If the secretary issues a notice granting a "contested case" hearing request, the notice will assign an ALJ and set a date for hearing or for a pre-hearing conference with the ALJ. If the notice sets an actual hearing date, the hearing date may be not sooner than 30 days after the notice is issued (compared to 10 days under current rules). The ALJ may schedule or reschedule a hearing date, as necessary.
Hearing on Summary Orders
Under many of its programs, DATCP is authorized to issue summary orders (without prior notice or hearing) to protect public health, safety or welfare. These include food holding orders, food condemnation orders, animal disease quarantine and condemnation orders, invasive pest quarantine and control orders, and a variety of other orders. The recipient of a summary order may request a hearing on that order.
This rule clarifies that the recipient of a summary order may request an immediate informal hearing, or a formal "contested case" hearing, or both. Many cases are resolved with an informal hearing, without the need for a formal "contested case" hearing. A requested informal hearing must be conducted as soon as reasonably possible, but not more than 20 days after the hearing request (compared to 10 days under current rules). A requester may agree to a later informal hearing date.
Informal hearings are conducted by DATCP managers or staff who have had no prior involvement in the case, and who are authorized to take or recommend remedial action as necessary. This rule clarifies that informal hearings are not governed by formal "contested case" procedures. If a matter is not successfully resolved by informal hearing, the affected party may request a formal "contested case" hearing.
Parties Represented by Attorney
Under current rules, a party to a formal "contested case" hearing may appear on his or her own behalf or may have a legal representative. Under this rule, the representative must be an attorney who is authorized to practice law in this state. As under current rules, the attorney's actions are binding on the represented party.
ALJ Authority
This rule clarifies, but does not substantially alter, the authority exercised by an ALJ (including an ALJ from the department of administration, division of hearings and appeals) in a DATCP "contested case."
Disclosure of Witnesses and Evidence; Discovery
Under current rules and this rule, parties must generally disclose (to opposing parties) the witnesses and evidence that they intend to call or offer in a "contested case hearing." Under this rule, the parties must disclose their witnesses and evidence at least 10 days prior to hearing (current rule requires 7 days).
Under current rules and this rule, parties may have a right to "discover" (via pre-hearing depositions, interrogatories, etc.) relevant information possessed by opposing parties. Under this rule, "discovery" must be completed at least 10 days prior to hearing.
Hearing Transcripts
Under current rules, hearings in DATCP "contested cases" may be electronically recorded or transcribed in writing. This rule clarifies that hearings will normally be electronically recorded (the normal method used by the department of administration, division of hearings and appeals) unless the ALJ orders a written transcript with the approval of DATCP.
Under current rules and this rule, any party may request a written transcript.
Under current rules and this rule, if a written transcript is prepared in response to a request from any party, that party must pay the transcription and copying cost. Under this rule, DATCP must charge its actual per-page transcription cost (compared to a standard per-page charge of $1.75 under current rules) plus a copying cost of 25 cents per page. Other parties may obtain copies by paying a copying cost of 25 cents per page.
Under current rules and this rule, if DATCP orders a written transcript for its own purposes or for purposes of judicial review, DATCP must pay the transcription cost. Other parties may obtain copies for 25 cents per page.
Videoconferencing
Under this rule, an ALJ may conduct a "contested case" hearing by videoconferencing if current statutory standards for videoconference court proceedings are met.
Order of Proof
This rule clarifies, but does not substantially alter, current rules related to the order of proof in "contested cases." Generally speaking, the party bringing the case has the initial burden of going forward.
Proposed ALJ Decision; Objections
Under current DATCP rules, the DATCP secretary is normally the final decisionmaker in a "contested case" unless the secretary delegates that authority to the ALJ or another official. If the ALJ is not the final decisionmaker, the ALJ must prepare a proposed decision for consideration by the final decisionmaker. The ALJ must provide copies of the proposed decision to the parties. Under this rule, parties have at least 30 days to file objections to the proposed decision (compared to 15 days under current rules).
Settlement
This rule clarifies, but does not substantially alter, current procedures for settling "contested cases." Parties may settle a "contested case" at any time, subject to the approval of the final decisionmaker. Among other things, the parties may stipulate to a DATCP order resolving the disputed matter.
Frivolous Claims; Cost Award
Under s. 227.485, Stats., and current DATCP rules, if an individual or small business prevails in a "contested case" against DATCP, the ALJ may order DATCP to pay costs and attorney fees to the prevailing individual or small business unless the ALJ finds that DATCP's losing position was substantially justified. This rule does not change these current rule provisions.
Under s. 227.483, Stats., if an ALJ finds that any party (including a private party or DATCP) has asserted a "frivolous" claim in a contested case, the ALJ may order the party to reimburse another party (including a private party or DATCP) for reasonable costs and attorney fees incurred in defending that claim. This rule incorporates the provisions of s. 227.483, Stats., into ATCP 1. Under this rule, as under s. 227.483, Stats., an ALJ may not find that a claim is "frivolous" unless the ALJ finds at least one of the following:
The action, claim or defense was initiated or pursued in bad faith, solely for the purpose of harassing or maliciously injuring another.
The party or party's attorney knew or should have known that the action, claim or defense was without any reasonable basis in law or equity, and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
Comparison with federal regulations
A variety of federal regulations govern procedures in federal "contested cases." 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.
Small Business Impact
This rule will have no significant effect on business.
The small business regulatory coordinator is Keeley Moll and can be contacted at: Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.
Fiscal Estimate
This rule will clarify and update current procedures in "contested cases," but will not make major substantive changes. This rule will not increase or decrease the number of cases, nor will it have a significant impact on case processing costs.
This rule will have no fiscal effect on DATCP or local units of government.
State fiscal effect
None.
Local government fiscal effect
None.
Fund source affected
GPR.
Affected Ch. 20 appropriation
Section 20.115 (1) (a), Stats.
Agency Contact Person
Karen Schultz
(608) 224-5023
Notice of Hearing
Commerce
Fee Schedule, Ch. Comm 2
Plumbing, Chs. Comm 81-87
NOTICE IS HEREBY GIVEN that pursuant to ss. 101.02 (1), 101.19, 145.02 (3), 101.982, and 101.983, Stats., the Department of Commerce will hold a public hearing on proposed rules under Chapters Comm 2 and 82, relating to permit to operate, registration and filing fees.
Hearing Information
The public hearing will be held as follows:
Date and Time
Location
August 13, 2009
Conference Room 3C
1:00 p.m.
Thompson Commerce Center
201 W. Washington Avenue
Madison
This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 or (608) 264-8777 (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Appearance at Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until August 21, 2009, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at jim.quast@Wisconsin.gov.
Copies of Proposed Rules
The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at roberta.ward@wisconsin.gov, or at telephone (608) 266-8741 or TDD Relay dial 711 in Wisconsin or (800) 947-3529. Copies will also be available at the public hearing.
Analysis Prepared by Department of Commerce
Statutes interpreted
Sections 101.02 (1), 101.10, 101.19, 101.17, 101.983, 145.01, and 145.02, Stats.
Statutory authority
Sections 101.02 (1), 101.19, 145.02 (3), 101.982, and 101.983, Stats.
Related statute or rule
None
Explanation of agency authority
Chapters 101 and 145, Stats., grant the department general authority for the purpose of protecting public health, safety and welfare by establishing standards and regulatory oversight programs for the construction and maintenance of buildings, structures and dwellings and their components. These programs are administered by the Safety and Buildings Division. Section 101.19, Stats., grants the department authority to promulgate rules to fix and collect fees that reflect the cost of providing certain programs. Section 145.02 (3) (h), Stats., grants the department authority to promulgate rules concerning the testing of cross-connection control devices.
Summary of proposed rules
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