Rule-Making Notices
Notice of Hearing
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed amendment to Chapter
ATCP 1, Wis. Adm. Code, relating to administrative orders and contested cases.
Hearing Information
DATCP will hold the public hearing at the time and location shown below.
August 27, 2009
1:00 – 2:30 p.m.
WI Dept. of Agriculture, Trade & Consumer Protection
2811 Agriculture Drive, Room 456
Madison, WI 53718
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by August 24, 2009, by writing to Emily Phelps, Office of the Secretary, P.O. Box 8911, Madison, WI 53708-8911,
emily.phelps@wi.gov, or (608) 224-5013. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.
Appearance at the Hearing and Submission of Written Comments
DATCP invites the public to attend the hearing and comment on the rule. Following the hearing, the hearing record will remain open until September 15, 2009 for additional written comments. Comments may be sent to the Office of the Secretary, at the address below, by email to
Emily.phelps@wi.gov or online at
https://apps4.dhfs. state.wi.us/admrules/public/Home.
To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address above, or by emailing to
Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.
Copies of Proposed Rule
You may obtain free copy of this proposed rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling (608) 224-5160 or emailing
michelle.reinen@wi.gov. Copies will also be available at the hearing. To view the proposed rule online, go to:
https://apps4.dhfs.state.wi.us/admrules/public/ Home.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (DATCP) administers a wide range of laws related to food safety, disease control, consumer protection, agricultural resource management and other matters. Under these laws, DATCP may issue various kinds of administrative orders and take other administrative actions that have the force of law.
Persons adversely affected by these orders and actions may request a trial-type “contested case" hearing under ch.
227, Stats., and ch.
ATCP 1, Wis. Adm. Code (ATCP 1). This rule updates and clarifies current “contested case" procedures under ATCP 1.
Statutes interpreted
Statutory authority
Explanation of agency 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 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.
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Under current rules and this rule, any party may request a written transcript.
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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.
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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.
