1.01(9)(b)(b) 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.
1.01(9)(c)(c) 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) and (2), 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.”
1.01(9)(d)(d) 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.”
1.01(9)(e)(e) Generally use the singular form of a word. Do not use "(s)” to indicate that the word may be singular or plural.
1.01(9)(f)(f) 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.”
1.021.02 Arrangement of rule-making orders.
1.02(1)(1) Introductory clause.
1.02(1)(a)(a) New administrative rules are created and existing rules are revised or repealed by rule-making orders adopted by agencies with rule-making authority.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.
1.02(1)(b)(b) 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.
1.02(1)(c)(c) 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), Stats.]
EXAMPLE:
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.
1.02(2)(2) Rule summary.
1.02(2)(a)(a) 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:
1.02(2)(a)1.1. Statutes interpreted.
1.02(2)(a)2.2. Statutory authority.
1.02(2)(a)3.3. Explanation of agency authority.
1.02(2)(a)4.4. Related statutes or rules.
1.02(2)(a)5.5. Plain language analysis.
1.02(2)(a)6.6. Summary of, and comparison with, existing or proposed federal statutes and regulations.
1.02(2)(a)7.7. Comparison with rules in adjacent states.
1.02(2)(a)8.8. Summary of factual data and analytical methodologies.
1.02(2)(a)9.9. Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis.
1.02(2)(a)10.10. Effect on small business.
1.02(2)(a)11.11. 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.
1.02(2)(a)12.12. Agency contact person (including e-mail and telephone number).
1.02(2)(a)13.13. 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.
1.02(2)(b)(b) 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.
1.02(2m)(2m) Statutory authority.
1.02(2m)(a)(a) 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.
1.02(2m)(b)(b) 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:
1.02(2m)(b)1.1. 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.
1.02(2m)(b)2.2. 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.
1.02(2m)(b)3.3. 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.
[s. 227.11 (2) (a), Stats.]
1.02(2m)(c)(c) 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), Stats.]
NOTE: See also Executive Order #50 regarding agency authority to promulgate rules.
1.02(3)(3) Text of rule. In drafting a chapter or section of administrative rules, proper organization of the text of the rule is important to aid the reader in understanding the pattern of regulation or required conduct set forth in the rule. Single-section chapters should be avoided. Combine similar material into a chapter with several sections, rather than arranging each section as a separate chapter. If it enhances clarity and convenience in locating provisions, a long or complex rule may be divided into appropriate chapters. The recommended sequence of material in a rule chapter or rule section is as follows:
1.02(3)(a)(a) Purpose of the chapter or section. A purpose statement is not necessary, but if it is included, it should be the first item.
1.02(3)(b)(b) Definitions of words or terms used in the chapter or section.
1.02(3)(c)(c) Substantive provisions in their order of importance, time sequence, or other logical arrangement.
1.02(3)(d)(d) Exceptions, exemptions, or exclusions, if any, to the chapter or section.
1.02(3)(e)(e) Benefits, sanctions, or results of compliance or noncompliance with the chapter or section.
NOTE: See also s. 1.04, Manual, for the arrangement of rule text in Sections.
NOTE: When drafting proposed changes to an existing rule, the current version of a rule should be used. To obtain a copy of the current version, contact Bruce Hoesly or Tami Dodge at LRB.
1.02(3m)(3m) Initial applicability. If there is an existing rule that is modified by a rule, an agency may wish to include an initial applicability clause after the text of the rule and before the effective date clause described in sub. (4). An initial applicability clause may be used to apply the revised rule to events occurring on or after the effective date, and to apply the existing rule to events occurring before the effective date. An initial applicability clause may also be used to provide that a new rule applies to events occurring on or after a specified date.
EXAMPLE:
Section __. Initial applicability. This rule first applies to license renewal applications that are submitted on the effective date of this rule.
1.02(4)(4) Effective dates.
1.02(4)(a)(a) Each rule must have an effective date clause. If an agency intends that a rule take effect on the first day of the month following publication in the Register, the effective date clause should cite s. 227.22 (2) (intro.), Stats. [See also s. 2.115, Manual.]
EXAMPLE:
Section __. Effective date. This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s. 227.22 (2) (intro.), Stats.
1.02(4)(b)(b) If a rule will take effect on a specified date, the effective date clause should specify that date.
1.02(4)(c)(c) If the agency desires a particular effective date for a rule, it should confirm the proposed date with LRB to be certain that the desired date is feasible.
1.02(4)(d)(d) An effective date is set forth in a numbered Section at the end of a rule-making order. [See the example under par. (a), above.] LRB will include the effective date in the Register and in the Wisconsin Administrative Code (Administrative Code) in a history note.
1.02(5)(5) Emergency rule. If the rule is an emergency rule, it must include a statement of the facts constituting an emergency. [See s. 2.12, Manual.]
1.02(6)(6) Regulatory flexibility analysis.
1.02(6)(a)(a) If the rule will have any effect on small business, an initial regulatory flexibility analysis must be prepared and, if the rule may have an economic impact on small business, the rule must be submitted to the Small Business Regulatory Review Board (SBRRB). The initial regulatory flexibility analysis must be included in the notice of hearing. [ss. 227.14 (2g) and 227.17 (3) (f), Stats.; and s. 2.04 (6) (d), Manual.]
1.02(6)(b)(b) The SBRRB will determine whether the rule will have a significant economic impact on a substantial number of small businesses. The agency will also need to prepare a final regulatory flexibility analysis for submission to the Legislature along with the proposed rule unless the SBRRB determines that the rule will not have a significant economic impact on a substantial number of small businesses. [s. 227.19 (3) (e) and (3m), Stats.; and s. 3.02 (2) (p), Manual.]
NOTE: The term "small business” is defined in s. 227.114 (1), Stats.
1.02(7)(7) Fiscal estimates.
1.02(7)(a)(a) A fiscal estimate is required for all proposed rules under s. 227.14 (4), Stats. The fiscal estimate must include all of the following:
1.02(7)(a)1.1. Any anticipated fiscal effect of the rule on the fiscal liability and revenues of a county, city, village, town, school district, technical college district, and sewerage district.
1.02(7)(a)2.2. A projection of the rule's anticipated state fiscal effect in the current biennium and a projection of the net annualized fiscal impact on state funds.
1.02(7)(a)2m.2m. For rules that the agency determines may have a significant fiscal effect on the private sector, the anticipated costs that will be incurred by the private sector in complying with the rule.
1.02(7)(a)3.3. A list of the major assumptions used in preparing the estimate.
1.02(7)(b)(b) If the rule has no fiscal effect, independent of the fiscal effect of the statute upon which it is based, the agency should base its fiscal estimate on the fiscal effect of the statute.
1.02(7)(c)(c) If, during the rule-making process, the rule is substantially revised so that the fiscal effect is significantly changed, the agency must prepare a revised fiscal estimate prior to promulgating the rule. The revised fiscal estimate is published in the Register.
1.02(7)(d)1.1. The fiscal estimate must accompany any rule that is submitted to the Rules Clearinghouse for review under s. 227.15, Stats.
1.02(7)(d)2.2. The fiscal estimate or a summary of the fiscal estimate and a statement of the availability of the full fiscal estimate must be provided to LRB when a notice of hearing on the rule is filed for publication in the Register. If the agency initiates the rule-making process with a 30-day notice pursuant to s. 227.16 (2) (e), Stats., the full fiscal estimate must be provided to LRB for publication with the notice.
NOTE: The Department of Administration (DOA) has developed a template for preparing a fiscal estimate and the economic impact analysis described in sub. (8). The template is available at: http://legis.wisconsin.gov/lc/adminrules/files/AR_FiscalEstimate-DOA-2049.doc.
1.02(8)(8) Economic impact analyses.
1.02(8)(a)(a) An economic impact analysis must be prepared for every proposed rule before the rule is submitted to the Rules Clearinghouse for review. [s. 227.137, Stats.] This requirement does not apply to emergency rules. The analysis must include information on the economic effect of the proposed rule on specific businesses, business sectors, public utility ratepayers, local governmental units, and the state's economy as a whole. In preparing the analysis, the agency must solicit information and advice from businesses, associations representing businesses, local governmental units, and individuals that may be affected by the proposed rule and must prepare the analysis in coordination with local governmental units that may be affected by the proposed rule. The analysis must include all of the following:
1.02(8)(a)1.1. An analysis and quantification of the policy problem that the proposed rule is intended to address, including comparisons with the approaches used by the federal government and by Illinois, Iowa, Michigan, and Minnesota to address that policy problem and, if the approach chosen by the agency to address that policy problem is different from those approaches, a statement as to why the agency chose a different approach.
1.02(8)(a)2.2. An analysis and detailed quantification of the economic impact of the proposed rule, including the implementation and compliance costs that are reasonably expected to be incurred by or passed along to the businesses, local governmental units, and individuals that may be affected by the proposed rule.
1.02(8)(a)3.3. An analysis of the actual and quantifiable benefits of the proposed rule, including an assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.
1.02(8)(a)4.4. An analysis of alternatives to the proposed rule, including the alternative of not promulgating the proposed rule.
1.02(8)(a)5.5. A determination made in consultation with the businesses, local governmental units, and individuals that may be affected by the proposed rule as to whether the proposed rule would adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of the state.
NOTE: See Executive Order #50 for additional requirements pertaining to economic impact analyses.
1.02(8)(b)(b) If an economic impact analysis relates to a proposed rule of the Department of Safety and Professional Services under s. 101.63 (1), Stats., establishing standards for dwelling construction, the analysis must address whether the rule would increase the cost of constructing or remodeling a dwelling by more than $1,000. [s. 227.137 (3) (f), Stats.]
1.02(8)(c)(c) On the same day that the agency submits the economic impact analysis to the Rules Clearinghouse under s. 227.15 (1), Stats., the agency must also submit the analysis to DOA, to the Governor, and to the Chief Clerks of each house of the Legislature for further distribution within the Legislature. [s. 227.137 (4), Stats.]
1.02(8)(d)(d) If a proposed rule is modified after the economic impact analysis is submitted so that the economic impact of the proposed rule is significantly changed, the agency must prepare a revised economic impact analysis for the proposed rule as modified and submit the revised analysis in the same manner as the original. [s. 227.137 (4), Stats.]
1.02(8)(e)(e) If an economic impact analysis regarding a proposed rule indicates that a total of $20,000,000 or more in implementation and compliance costs are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals as a result of the proposed rule, DOA must review the proposed rule and issue a report. The agency may not submit a proposed rule to the Legislature for review under s. 227.19 (2), Stats., until the agency receives a copy of DOA's report and the approval of the DOA Secretary. [s. 227.137 (6), Stats.]
1.02(9)(9) Housing reports. If a rule directly or substantially affects the development, construction, cost, or availability of housing in Wisconsin, DOA is required to prepare a report on the rule before it is submitted to the Rules Clearinghouse. The report must be prepared within 30 days of submission of the rule to DOA. The report must contain information about the effect of the rule on housing, including the specific information required under s. 227.115 (3) (a), Stats. The report is included in the agency's report to the Legislature under s. 227.19 (3), Stats.
1.031.03 Organizing and numbering rule units.
1.03(1)(1) General. Each Administrative Code chapter consists of one or more sections. [See s. 1.02 (3), Manual.] Chapters may be subdivided into subchapters. Sections may be subdivided into the following subunits: subsections, paragraphs, subdivisions, and subdivision paragraphs. When any section, or part of a section, is divided into smaller subunits, at least two subunits must be created. To preserve clarity and uniformity and to simplify drafting, rule sections should be numbered according to the decimal system and subdivided into subsections and smaller subunits whenever feasible.
EXAMPLE: As an example, the parts of s. DHS 163.10 (1) (a) 2. b. and the abbreviations for each subunit are as follows:
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