APPENDIX - FLOW CHART OF RULE PROMULGATION
The Administrative Rules Procedures Manual
is prepared jointly by the Legislative Reference Bureau (LRB) and the Legislative Council Rules Clearinghouse (Rules Clearinghouse), pursuant to s. 227.15 (7)
, Stats. Its purpose is to provide agency personnel with information on the three basic aspects of administrative rule-making: drafting, promulgation, and legislative review. The electronic version of the Manual contains live links to the statutes, documents, and other items cited in the Manual.
PART 1 of the Manual discusses the form and style of agency rule drafting which generally follows LRB's bill drafting style and format. PART 1 also contains the standards applied by the Rules Clearinghouse when reviewing proposed rules.
PART 2 describes an agency's internal activities when it drafts and promulgates administrative rules. The rule-making procedures described in PART 2 follow the general procedures found in ch. 227, Stats. However, if an agency is subject to special statutory procedures, those procedures must be followed. PART 2 also contains information relating to filing deadlines for material published in the Wisconsin Administrative Register (Register).
PART 3 sets forth the process of legislative review of administrative rules, including procedures for review of proposed rules by the Rules Clearinghouse, legislative standing committees, and the Joint Committee for Review of Administrative Rules (JCRAR).
PART 3 also summarizes the statutes relating to review by JCRAR of existing rules.
The APPENDIX contains a flow chart of the rule promulgation process.
Agency personnel having questions or needing assistance are encouraged to contact:
Legislative Reference Bureau Legislative Council Rules Clearinghouse
Bruce Hoesly Scott Grosz
Senior Revising Attorney/Code Editor
Tamara Dodge Jessica Karls-Ruplinger
Legislative Attorney/Assistant Code Editor Co-Director
Telephone: (608) 267-7380 Telephone: (608) 266-2230
DRAFTING STYLE AND FORMAT
. The purpose of administrative rules is to supplement, implement, or interpret legislation. To the extent possible, rules are to adhere to the format and drafting style of bills prepared for the Legislature, as specified in this Manual. Draft administrative rules in concise simple sentences, using plain language that can be easily understood. Express ideas and concepts positively using the present tense and the active voice. Avoid Latin and other foreign terms. [s. 227.14 (1)
NOTE: To provide additional guidance regarding legislative drafting style, the following excerpts from the LRB Bill Drafting Manual may be accessed from the electronic version of this Manual at: http://docs.legis.wisconsin.gov/
1.01(2)(2) Mandatory and permissive actions
. Use the word "shall” to denote a mandatory or absolute duty or directive. Use the word "may” to denote an optional or permissive privilege, right, or grant of discretionary authority. Avoid use of a negative subject with an affirmative "shall.” The term "No person shall” is incorrect. The correct way to express a prohibition is either "No person may . . .” or "A person may not . . . .”
1.01(3)(3) Sex-neutral language
. When drafting new rules and revising existing rules, eliminate all terminology that is not sex-neutral. Avoid the repetitious use of the phrases "he or she” and "his or her.” Do not use slashed alternatives, such as "he/she,” "his/her” or "s/he.” In most cases, a pronoun can be replaced with the noun to which it refers; for example, "he the secretary
shall set fees for state parks.” In other cases, a pronoun is unnecessary and should be deleted; for example, "The commissioner or his a
designee shall be present.”
. Avoid using capital letters except for proper names. For proper names, capitalize according to standard rules of English usage with one major exception: do not capitalize state or federal departments or agencies other than the University of Wisconsin System.
EXAMPLES: city of Madison, Dane County, Dane and Racine counties, Mississippi River, World War II, public service commission, Mendota Mental Health Institute, national park service, U.S. fish and wildlife service, Madison Gas and Electric Company, and Internal Revenue Code.
. Numbers are expressed using Arabic numerals, with certain exceptions. Numbers at the beginning of a sentence are spelled out. The number "one” is spelled out, unless it is in reference to a date, percentage, or money, or in a series of numbers.
EXAMPLES: The following are examples of when the numeral "
1” is used rather than the word "one”—January 1; 1 percent; 1, 5, or 7; or $1.
. Avoid using parentheses. If certain material is important to the thought or concept expressed in the rule, the material should be set apart with commas, not parentheses. Otherwise, place the material, if necessary, in an explanatory note immediately following the rule itself.
The use of definitions is an important technique to achieve consistency and clarity of terminology within a chapter or section of rules. If a definition of a word or term applies to an entire chapter, the definition should appear at or near the beginning of the chapter. If a definition applies only to a particular rule section or subsection, it should appear only in that section or subsection, not somewhere else in the chapter or in a different chapter. Also, the extent of the applicability of the definitions should be clearly stated; for example, the definitions might be preceded by the phrase "In this chapter:” or "In this section:”. Definitions are arranged alphabetically.
A definition is always drafted as a complete sentence. Substantive provisions are never incorporated as part of a definition.
EXAMPLES OF INCORRECT STYLE:
DHS 83.04 (18) Department. The Wisconsin department of health services.
(Example of incomplete sentence.)
DHS 83.04 (18) "Department” means the Wisconsin department of health services, which shall administer this chapter.
(Example of additional substance added.)
EXAMPLE OF CORRECT STYLE:
DHS 83.04 (18) "Department” means the Wisconsin department of health services.
The use of the term "means” in a definition limits the scope of the definition solely to the example or examples stated. Use of the term "includes” expands the scope of the definition to encompass other reasonably related examples not specifically enumerated. If a rule is interpreting a statute that contains a definition using the term "includes,” the rule cannot use the term "means” in defining the same word.
If a rule uses a definition that is identical to one found in the statutes, the definition may be drafted as a simple reference to the statutory definition; for example, "`Obligation' has the meaning given in s. 150.01 (16)
. Acronyms or other abbreviations should be used only to improve readability. If acronyms are used for units of measurement, names of agencies or programs, or phrases in a rule, they must be defined and used consistently. If some purpose is served by using the full phrase interchangeably with the acronym, include both in the definition; for example, "`EIA' or `environmental impact analysis' means . . . .”
1.01(9)(9) Avoid certain words and phrases
Do not use slashed alternatives, such as "and/or,” in drafting administrative rules. Instead, determine whether the sentence means "and” or "or” and use the appropriate word. If the thought to be expressed involves a choice between one of two alternatives, or both, the proper phrasing to be used is "_________ or _________, or both.”
Avoid the use of the words "currently,” "now,” and "formerly,” since these terms are meaningless once rules are printed. If necessary, make reference to a certain date; for example, "loans entered into on or after January 1, 1991.” If an agency wishes to insert the actual effective date of a rule into the text, this may be done by incorporating, in the location where the date is to appear, the following text—"the effective date of this section . . . . [LRB inserts date].” This permits LRB to substitute the actual date.
Avoid the use of vague words and phrases, such as "thereto,” "
herein,” "thereafter,” "above,” "below,” "hereafter,” "heretofore mentioned,” and "hereunder.” Instead use specific references, such as "in this chapter,” "in subd. 1.,” or "under this section.” [See also s. 1.07 (1) (a)
, Manual.] Do not use the words "said” or "such” in place of an article; for example, "said form” should be "the form.” To avoid ambiguity, use specific references; for example, "the form specified in subd. 1.” Avoid the use of the vague term "etc.”
When referring to a series of provisions or numbers, use "to” rather than "through”; for example, use "pars. (a) to (e)” or "items 11. to 20.”
Generally use the singular form of a word. Do not use "(s)” to indicate that the word may be singular or plural.
In definitions and in substantive provisions of a rule, "including, but not limited to,” should be avoided because it has the same meaning as "including.”
Arrangement of rule-making orders.
New administrative rules are created and existing rules are revised or repealed by rule-making orders adopted by agencies with rule-making authority. A rule-making order begins with an introductory clause that is comprised of an enumeration of the rule provisions treated by the proposed order and the nature of the treatment and a
relating clause concisely stating the subject matter of the proposed order.
In the enumeration of provisions treated, group the provisions in the following order: to repeal; to renumber; to renumber and amend; to consolidate, renumber, and amend; to amend; to repeal and recreate; and to create.
If a rule will have an impact on small business, include the phrase "and affecting small business” at the end of the relating clause, so that the Rules Clearinghouse can separately identify the rule on its website. [s. 227.15 (1m)
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes an order to repeal ATCP 7.02 (1); to renumber ATCP 7.02 (2); to renumber and amend ATCP 7.03; to amend ch. ATCP 7 (title) and ATCP 7.04 (title) and (2) and 7.05 (3) (a) (Note) and (b); to repeal and recreate ATCP 7.02 (3) and 7.05 (1); and to create ATCP 7.025, relating to dairy plant trustees.
Immediately following the introductory clause is a rule summary, as described in s. 227.14 (2)
, Stats. (which refers to the summary as an "analysis”). The summary should contain all of the following headings; if there is no information under a particular heading, the heading is included and the text should state that there is no information:
Summary of, and comparison with, existing or proposed federal statutes and regulations.
Summary of factual data and analytical methodologies.
Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis.
A copy of any comments and opinion prepared by the Board of Veterans Affairs under s. 45.03 (2m)
, Stats., for rules proposed by the Department of Veterans Affairs.
Agency contact person (including e-mail and telephone number).
Place where comments are to be submitted and deadline for submission.
NOTE: Executive Order #50, Guidelines for Promulgation of Administrative Rules, issued by Governor Scott Walker on November 2, 2011, requires agencies to submit the draft rule summary (analysis) under s. 227.14 (2), Stats., to the Governor prior to submittal of a proposed rule to the Rules Clearinghouse.
The purpose of the plain language analysis under par. (a) 5., above, is to provide an understandable and objective description of the effect of the rule. The analysis is not intended to be an exhaustive discussion of the rule, but should contain sufficient detail to enable the reader to understand the content of the rule and the changes made, if any, in existing rules. It should be written in plain, simple English.
Since all authority for administrative rules is conferred by statute, it is important for agencies to identify the specific statutes that authorize promulgation. An agency should cite the statute that explicitly grants authority to the agency to promulgate the rule. If the agency does not have explicit authority to promulgate the rule and the agency considers the rule necessary to effectuate the purpose of a statute, the agency should cite the statute that grants general rule-making authority to the agency to enforce or administer a statute. [s. 227.11 (2) (a)
, Stats.] Also, an agency should carefully review a proposed rule for consistency with all relevant statutes.
An agency may promulgate rules interpreting the provisions of a statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if it exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule that interprets the provisions of a statute enforced or administered by the agency:
A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the Legislature.
A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the Legislature.
A statute containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statute.
An agency may not implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by rule. [s. 227.10 (2m)
NOTE: See also Executive Order #50 regarding agency authority to promulgate rules.