NOTICE IS HEREBY GIVEN that pursuant to s.
301.035 (5), Stats., the Division of Hearings and Appeals will hold a public hearing to consider proposed changes to the Division's rules of practice and procedures in Chapter
HA 2, Wis. Adm. Code, relating to hearings before the Division.
Hearing Information
Date and Time Location
January 26, 2010 5005 University Avenue
at 1:30 p.m. Suite 210
Madison, Wisconsin
The public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact the Division of Hearings and Appeals by telephone: 608-266-7668; or by email: DHAmail@ wisconsin.gov.
Submission of Written Comments
Written comments in lieu of public hearing testimony may be submitted which must be received no later than the hearing date and should be addressed to Diane Norman, Assistant Administrator for the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705.
Copies of Proposed Rule and Fiscal Estimate
A copy of the full text of the proposed rule revisions and fiscal estimate may be obtained from:
Diane E. Norman, Assistant Administrator, Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705; Phone: 608-266-7667; email:
DHAmail@wisconsin.gov.
Analysis Prepared by the Division of Hearings and Appeals
Statutes interpreted
Statutory authority
Section
301.035 (5), Stat., gives the division authority to promulgate its rules of procedure. This chapter applies to corrections hearings under ss.
302.11 (7),
973.10,
975.10 (2) and ch.
304, Stats. The procedural rules of general application contained in this chapter also apply to youth aftercare revocation proceedings in any situation not specifically dealt with in ch.
DOC 393.
Explanation of agency authority
If a person on probation supervision violates a condition or rule of probation, s.
973.10(2), Stats. allows the Department of Corrections to initiate a proceeding
before the
division and allows the division to conduct administrative hearings and enter an order either revoking or not revoking probation. If a person on parole or extended supervision violates a condition or rule of parole or extended supervision, ch.
304, Stats., allows the Department of Corrections to initiate a proceeding
before the
division and allows the division to conduct administrative hearings and enter an order either revoking or not revoking parole or extended supervision. If a juvenile violates a condition or rule of aftercare status, s.
938.357(5), Stat., allows the Department of Corrections to initiate a proceeding
before the
division and allows the division to conduct administrative hearings and enter an order either revoking or not revoking the aftercare status of a juvenile. The division's rules govern procedures in these hearings.
Related statute or rule
Plain language analysis
Section by section details of this rule order are outlined as follows:
Section 1: HA 2.03 is amended to allow documents to be issued or filed by electronic means as well as personally or by United States mail, inter-departmental mail or facsimile transmission. This amendment is to acknowledge the current technology for sending documents and reflects the current procedure of the division.
Section 2: HA 2.04 is amended to allow the secretary of the department of corrections, or any person authorized by the secretary to act in his or her stead, to issue a subpoena to require the attendance of witnesses, on behalf of the department of corrections, in any community supervision revocation proceeding. The secretary is authorized by s.
301.045, Stats. to issue subpoenas in corrections matters. This amendment also allows that a department of corrections agent, who is representing the department of corrections at the revocation hearing, to issue subpoenas as has been the regular practice for revocation hearings. Although the division reserves the right to issue subpoenas directly, the agents are in a better position to issue the necessary subpoenas and the division's responsibility should be limited to cases where the division is asked to modify or cancel a subpoena.
Section 3: HA 2.05(1) is amended to delete unnecessary statutory references. This section is also amended to require that reference to any witness statements that will be part of the Department of Correction's evidence shall be included in the notice of the hearing to the offender. This section is also amended to add the word “potential" to the list of evidence and witnesses to reflect that the department may not actually bring this evidence or call these witnesses when the hearing takes place.
Section 4: HA 2.05 (3) is amended to allow the client to attend the hearing by electronic means. The next section explains the authority for this change in more detail. This section is also amended to delete the unnecessary reference to the administrative appeal which is addressed in HA 2.05(8).
Section 5: HA 2.05 (6) is amended to allow a revocation hearing to take place by video conferencing or by telephone. The ability to conduct revocation hearings by videoconference or telephone is the practice of the division at this time. This allows the hearings to be done in a timely manner when the number of hearing requests continue to increase, while the number of administrative law judges does not. Videoconference or telephone hearings satisfy the due process required for revocation hearings. In
Morrissey v. Brewer, the United States Supreme Court held that the minimum requirements of due process in relation to a community supervision revocation hearing must include the opportunity to be heard in
person and the right to confront and cross-examine adverse witnesses.
408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). While
Morrissey specifically provided for the right to “confront and cross-examine adverse witnesses" absent a showing of good cause,
408 U.S. at 489, 92 S.Ct. 2593, the Supreme Court clarified in
Gagnon that it “did not in
Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence,"
411 U.S. at 782 n. 5, 93 S.Ct. 1756. Given that the Supreme Court held that these types of statements can substitute for live testimony in some cases, it is not “objectively unreasonable" to conclude that it would have approved of videoconferencing. While videoconferencing was not available in the early 1970s, and thus was not contemplated by the Supreme Court in
Morrissey, it provides a person on community supervision with the right to observe and respond to the testimony of his accuser. Videoconferencing also provides the right to cross examine at the hearing. Moreover, if the parties agree or if there are no factual issues regarding the violations alleged by the department, the person on community supervision will be afforded the required due process by appearing by telephone.
Section 6: HA 2.05 (7) is amended to delete unnecessary statutory and administrative rule references. HA 2.05 (7) (f) 3. is amended to replace the term “parole" with the more inclusive term “community supervision."
Section 7: HA 2.06 (7) (h) is amended to replace the term “hearing" with the term “close of the record" which allows for situations where the record is held open for a specified period of time after the hearing.
Section 8: HA 2.05 (8) (b) is amended to allow for an administrative appeal to be dismissed if the opposing party does not receive a timely copy of the appeal which is necessary to allow both parties to participate in an administrative appeal.
Section 9: The title to HA 2.06 is amended to add the term reconfinement to reflect that the division now has the authority to order reconfinement in extended supervision cases under section
302.113 (9) and
302.114 (9), Stats.
Section 10: HA 2.06 (1) is amended to delete unnecessary statutory references. HA 2.06 (1) is further amended to add the term reconfinement to this section to reflect that the division now has the authority to order reconfinement in extended supervision cases under section
302.113 (9) and
302.114(9), Stats.
Section 11: HA 2.06 (2), (3), (4) and (5) are amended to allow this type of hearing to take place by video conferencing or by telephone. These hearings or normally conducted by telephone. There is no factual dispute in these hearings regarding the alleged violations of community supervision. The only issue in these hearings is the length of incarceration to be determined by the administrative law judge.
Section 12: HA 2.06 (6) (c) is amended to delete unnecessary and outdated statutory references.
Section 13: HA 2.06 (6) (d) is amended to replace the term “hearing" with the term “close of the record" which allows more time for situations where the record is held open for a specific period of time after the hearing.
Section 14: HA 2.06 (7) is amended to delete the requirement for a synopsis which is not required by statute and not the practice of the division. A digital recording of all revocation hearings is available for review when necessary.
Section 15: HA 2.07 is amended to delete the reference to the amount charged per page for transcripts. This amount is outdated and not the correct amount charged by the division. The amount charged is determined by the administrator for the division and can be found in the public notice for access to records and on the internet at
http://dha.state.wi.us/home/ RecordsPolicy.htm.
Comparison with federal regulations
There are no federal regulations governing practice and procedure before the division. While there are procedures for federal parole revocation hearings before the federal parole commission, they are not comparable to the hearings conducted by the division.
Comparison with rules in adjacent states
There are no comparable state regulations governing hearings for revocation of a person's community supervision by the department of corrections.
Summary of factual data and analytical methodologies
The division has not collected any data nor adopted a methodology in connection with its development of these proposed rule changes. The proposed changes generally are intended to clarify the rules, bring the rules into conformity with applicable practice and update the rules to reflect changes in technology.
Analysis and supporting documentation used to determine effect on small business
The division has not collected any data in connection with its determination of the impact of these proposed rule changes on small business or in preparation of an economic impact report.
Small Business Impact
This proposed rule does not have a significant effect on small business.
Fiscal Estimate
The division has already substantially reduced travel expenditures by conducting hearings by videoconference or telephone conference that would have been necessary if an administrative law judge were required to travel in person to each revocation hearing location.
Agency Contact Person
Diane E. Norman, Assistant Administrator
Division of Hearings and Appeals
5005 University Avenue, Suite 201
Madison, WI 53705
Phone: 608-266-7667
Notice of Hearings
Natural Resources
Environmental Protection — General, Chs.
NR 100—
NOTICE IS HEREBY GIVEN THAT pursuant to ss.
227.11 (2) (a),
281.16,
281.19,
281.65 and
281.66, Stats., the Department of Natural Resources will hold public hearings on proposed revisions to Chapters
NR 151,
153 and
155, Wis. Adm. Code, relating to the control of polluted runoff and two grant programs that help fund those controls.
Hearing Information
The hearings will be held on:
January 25, 2010 Outagamie County Highway Dept.
at 1:00 p.m. Highway Shop Conference Room
1313 Holland Road
Appleton
January 28, 2010 Best Western Trail Lodge
at 1:00 p.m. 3340 Mondovi Road
Room: Chippewa #1
Eau Claire
February 2, 2010 State Office Bldg.
at 1:00 p.m. 141 NW Barstow St., Room 151
Waukesha
February 10, 2010 Lyman F. Anderson Agricultural and
at 1:00 p.m. Conservation Center
1 Fen Oak Court
Classrooms A & B (1st floor)
Madison
February 11, 2010 Rib Mountain Municipal Center
at 1:00 p.m. 3700 N. Mountain Road (HWY NN)
Wausau
Each hearing will begin with a 1 hour informational session followed by formal testimony.
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided to qualified individuals with disabilities upon request. Please call Carol Holden at (608) 266-0140 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rule and Fiscal Estimate
The proposed rule revisions and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following internet site:
https://health.wisconsin.gov/admrules/public/ Home (Search this website using “NR 151", select “NR 151, 153, 155 Relating to Runoff Management Performance Standards and Grants."). If you do not have internet access, a personal copy of the proposed rules and supporting documents, including the fiscal estimate may be obtained from Carol Holden, DNR – WT/3, P.O. Box 7921, Madison, WI 53707-7921 or by calling (608) 266-0140.
Submission of Written Comments
Written comments on the proposed rules may be submitted via U.S. mail to Carol Holden, DNR – WT/3, P.O. Box 7921, Madison, WI 53707-7921 or by e-mail to carol.holden@ wisconsin.gov. Comments may be submitted until Feb. 26, 2010. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Related statute or rule
Plain language analysis of the rule
Chapter NR 151, Runoff Management
The rule adds new and modifies existing performance standards that address nonpoint source pollution from both agricultural and non-agricultural sources, including transportation. The new performance standards include:
•
a setback from waterbodies in agricultural fields within which no tillage would be allowed;
•
a limit on the amount of phosphorus that may run off croplands as measured by a phosphorus index;
•
a prohibition against significant discharge of process wastewater from milk houses, feedlots, and other similar sources;
•
a standard that requires implementation of best management practices designed to meet a load allocation specified in an approved Total Maximum Daily Load (TMDL).
Modifications are made to the agricultural performance standards addressing cropland soil erosion control, nutrient management and manure storage. The rule also changes the non-agricultural performance standards that address construction site erosion control, post-construction storm water management and developed urban areas. The subchapter addressing transportation performance standards is moved to the non-agricultural performance standards sections. The agricultural implementation and enforcement sections are modified to clarify cost-share eligibility and to better align with the department's stepped enforcement procedures. Some definitions are added and other definitions that are no longer used are deleted.
Chapter NR 153, Targeted Runoff Management And Notice Of Discharge Grant Programs
