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DATCP Docket No. 15-R-11
Rules Clearinghouse No. 16-013
ORDER
OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin department of agriculture, trade and consumer protection hereby adopts the following rule to repeal ATCP 1.03(2) (a) and (b); and to amend ATCP 1.03(2) (intro.) and 1.05(1); relating to who may issue a special order within the department.
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (“Department”) 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 the Department’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
Statutory Authority
Statutory Authority:   s. 93.07 (1), 227.10 and 227.11, Stats.
Explanation of Statutory Authority
The Department has broad authority under s. 93.07(1), Stats., to adopt rules needed to implement laws under its jurisdiction. The Department has specific authority, under the provisions cited above, to adopt rules related to administrative orders and contested cases.
Related Statutes and Rules
The Department administers a wide range of statutes, including chs. 88, 91 to 100, 126 and 136, Stats. In the administration of these statutes, the Department 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 the Department’s division administrators or staff, while others may only be issued by the Department’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 which 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 that 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 the Department, 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
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Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.