1.08(2) (2) Federal regulations. If an agency is required to adopt federal regulations in addition to its own administrative rules to implement a statute, the agency may include the verbatim federal regulations in its rules. The federal regulation language should be clearly indicated to distinguish it from the remainder of the rule.

1.09 1.09 Notes to rules.

1.09(1) (1) Explanatory material. If it is necessary to clarify a rule by using examples, illustrations, or other explanatory material or if an agency wishes to disclose where or how particular information, including forms, may be obtained, the explanatory material follows the applicable rule provision and is labeled "Note:" or "Example:". Notes may not include substantive requirements and are not part of the substantive law created by rule.

1.09(2) (2) Creating, repealing, and amending notes. If a note is created, repealed, or amended, that action should be included in the enumeration of provisions treated (in the introductory clause described in s. 1.02 (1) (a), Manual) and in the proper sequentially numbered rule Section, as shown in the following examples:

1.09(2)(a) (a) To create a note, insert "…to create NR 1.05 (Note)…" in the enumeration of provisions treated. In the rule text, use the following treatment clause: "Section ____. NR 1.05 (Note) is created to read:". Insert the text of the new note, without underscoring, as it is entirely new language.

1.09(2)(b) (b) To repeal an existing note, insert "…to repeal NR 1.05 (Note)" in the enumeration of provisions treated. In the rule text, use the following treatment clause: "Section ___. NR 1.05 (Note) is repealed." Do not show the text of the note, as the language is being repealed.

1.09(2)(c) (c) To amend an existing note, insert "…to amend NR 1.05 (Note)" in the enumeration of provisions treated. In the rule text, use the following treatment clause: "Section ___. NR 1.05 (Note) is amended to read:". Insert the text of the current note and strike through material to be deleted and underscore material to be inserted.

1.09(3) (3) Reference to forms. If a rule requires a new or revised form, include a reference to the form in a note to the rule. The note should indicate the address that a person may write to, or the telephone number that a person may call, in order to obtain the form. If the form is available on the Internet, the note should indicate the website from which the form may be obtained. A copy of the form should be attached to the rule or a statement should be included indicating where a copy of the form may be obtained at no charge. LRB will insert the note in the Administrative Code. [See ss. 227.01 (13) (q) and 227.23, Stats., for the treatment of forms in ch. 227, Stats.]

1.10 1.10 Time periods for action on permit applications. Each rule that includes a requirement for a business to obtain a permit must include the number of business days, calculated beginning on the day a permit application is received, within which the agency will review and make a determination on the permit application. [s. 227.116 (1r), Stats.]

NOTE: Under s. 227.116 (1g), Stats., "permit" means any approval of an agency required as a condition of operating a business in this state.

PART 2

PROMULGATION PROCEDURE

2.001 2.001 Submission of materials to LRB.

2.001(1) (1) All materials submitted to LRB for publication must be submitted electronically as Microsoft Word documents. In creating proposed rules and related documents, do not use any auto-formatting or auto-numbering.

2.001(2) (2) Email documents to [e-mail]. LRB will email an acknowledgement of receipt of each submitted item. If you do not receive the acknowledgement, contact Bruce Hoesly at LRB. Except for certified copies of rules required to be filed with LRB under s. 227.20, Stats., LRB does not require submission of paper copies of any documents.

2.003 2.003 Submission of materials to state administrative rules website. Agencies are required to submit in electronic format to [e-mail], for inclusion on the state's administrative rules website, all publicly available materials regarding rules that are submitted to DOA, the Rules Clearinghouse, the Chief Clerks, LRB, legislative standing committees, and JCRAR. This includes scope statements, submissions to the Rules Clearinghouse of proposed rules and accompanying materials (such as fiscal estimates and economic impact analyses), reports of the SBRRB, notices regarding hearings, final proposed rules and reports to the Legislature that are sent to the Chief Clerks for referral to standing committees, emergency rule-making orders, requests for extensions for emergency rules, modifications to proposed rules, withdrawals or recalling of proposed rules, and final rules that are submitted to LRB for publication.

NOTE: The state administrative rules website on which all of these materials may be found is: http://adminrules.wisconsin.gov.

NOTE: 2011 Executive Order #50 requires that these materials also be submitted to the Governor's Office of Regulatory Compliance via: [e-mail].

2.005 2.005 Statement of scope of proposed rules.

2.005(1) (1)

2.005(1)(a) (a) For each administrative rule an agency plans to promulgate, a scope statement must be prepared, approved by the Governor, published in the Register, and approved by the person or body with policy-making powers for the agency. A scope statement is required for both proposed emergency rules and permanent rules. [s. 227.135, Stats., and 2011 Executive Order #50.]

NOTE: DOA has created a template for preparing scope statements: www.doa.state.wi.us/docview.asp?docid=9031&locid=166.

2.005(1)(b) (b) No state employee may perform any activity in connection with the drafting of a rule, except for the preparation of the scope statement, until the scope statement is approved by the Governor and the individual or body with policy-making powers for the agency. [See sub. (5), below, and s. 227.135 (2), Stats.]

2.005(2) (2) The scope statement must include all of the following elements, which should serve as the headings in the scope statement in the order stated below:

2.005(2)(a) (a) A description of the objective of the proposed rule.

2.005(2)(b) (b) A description of the existing policies and new policies included in the proposed rule and an analysis of policy alternatives.

2.005(2)(c) (c) The statutory authority for the proposed rule.

2.005(2)(d) (d) An estimate of the amount of time agency employees will spend developing the proposed rule and of other resources needed to develop the rule.

2.005(2)(e) (e) A description of all of the entities that will be affected by the proposed rule.

2.005(2)(f) (f) A summary and preliminary comparison of any existing or proposed federal regulation that addresses or is intended to address the activities to be regulated by the proposed rule.

[s. 227.135 (2), Stats.]

2.005(3) (3) The Governor must approve the scope statement in writing prior to submittal of the statement to LRB for publication in the Register. [s. 227.135 (2), Stats.]

NOTE: 2011 Executive Order #50 contains additional requirements needed to obtain the Governor's approval.

2.005(4) (4)

2.005(4)(a) (a) Upon approval by the Governor, the agency must send the scope statement to LRB for publication in the Register and, on the same day, send a copy to the Secretary of DOA. The agency should include the date of the Governor's approval in the electronic document submitted to LRB that contains the scope statement.

NOTE: 2011 Executive Order #50 states that an agency must file the scope statement for publication by LRB within 30 calendar days of the Governor's approval if it intends to proceed with rule-making or the Governor will deem the scope statement withdrawn.

2.005(4)(b) (b) Upon receipt by LRB of a scope statement for publication in the Register, LRB will assign a discrete identifying number to the scope statement in the following format: SS 001-11, which will be published in the Register along with the scope statement and the date of the Governor's approval.

2.005(5) (5)

2.005(5)(a) (a) No sooner than 10 days after publication of the scope statement in the Register, the statement may be presented for approval to the individual or body with policy-making powers for the agency and published in the Register. [s. 227.135 (2), Stats.]

NOTE: The Register is published on the 14th day and the last day of each month. See s. 2.06, Manual, for the Register deadline schedule for 2011 to 2014.

2.005(5)(b) (b) While the individual or body with policy-making powers may not approve a statement until at least 10 days after publication, the statutes contain no limit on when, following the Governor's approval, the scope statement must be published, no date by which a published scope statement must be approved by the individual or body with policy-making powers, and no time within which a proposed rule contemplated in the statement must be submitted to the Rules Clearinghouse. However, see the discussion of revised scope statements in sub. (6), below.

2.005(6) (6)

2.005(6)(a) (a) If an agency changes the scope of a proposed rule in any meaningful or measurable way at any time after a scope statement is approved by the Governor and the individual or body with policy-making powers, the agency must prepare and obtain approval of a revised scope statement in the same manner as the original statement was prepared and approved. The circumstances necessitating a revised scope statement include where the agency has changed the scope of the rule to include any activity, business, material, or product that is not specifically included in the original scope of the rule. [s. 227.135 (4), Stats.] It would appear that, if the change in scope of the proposed rule occurs after the Governor's approval of a scope statement and before approval by the individual or body with policy-making powers for the agency, a revised scope statement must be prepared and approved as provided in s. 227.135 (4), Stats.

2.005(6)(b) (b) A revised scope statement must contain all of the elements required for an original scope statement as set forth in sub. (2), above. The statement should be labeled a "Revised Statement of Scope" and contain a preface identifying the original statement that is being modified, as follows (as applicable):

This revised statement of scope modifies, SS ____, which was approved by the Governor on ______ (date), published in Register ____ (Register Number), on ______ (Register publication date), and approved by ________ (name of policy making body or individual for the agency as required by s. 227.135 (2), Stats.) on ______ (date), relating to __________________ (state the subject as it appears in the original statement.)

2.005(6)(c) (c) As with the original scope statement, the modified statement is submitted to the Governor for approval as provided in sub. (3), above, submitted to LRB for publication as provided in sub. (4), above, and submitted for approval by the individual or body with policy-making powers for the agency as provided in sub. (5), above. As with the original statement, no state employee may perform any activity in connection with the drafting of the rule, except for the preparation of the revised scope statement, until the scope statement is approved by the Governor and the individual or body with policy-making powers for the agency.

NOTE: For examples of actual scope statements filed by agencies with LRB, consult prior issues of the Register, available on the web at: http://www.legis.state.wi.us/rsb/regindex.htm.

2.01 2.01 Submittal to Legislative Council staff.

2.01(1) (1) Except for emergency rules, a copy of each proposed rule must be submitted to the Rules Clearinghouse as provided in s. 227.15, Stats. [See s. 3.01, Manual, for the requirements for submitting proposed rules to the Rules Clearinghouse for review.]

NOTE: On the same day that an agency submits to the Rules Clearinghouse a proposed rule that may have an economic impact on small businesses, the agency must submit the proposed rule and other materials to the SBRRB, as provided in s. 227.14 (2g), Stats. See 2011 Wisconsin Act 46 for changes to the rules promulgation process relating to the SBRRB.

2.01(2) (2) The agency must submit to LRB for publication in the Register, and to the Secretary of DOA, a notice, approved by the person or body with policy-making authority over the subject matter of the proposed rule, that the agency has submitted a proposed rule to the Rules Clearinghouse. [See s. 227.14 (4m), Stats.] The notice must include all of the following:

2.01(2)(a) (a) The date the proposed rule was submitted to the Rules Clearinghouse.

2.01(2)(b) (b) The subject matter of the proposed rule.

2.01(2)(c) (c) Whether a public hearing is required. Include the date of the hearing if it is known. If a hearing is not required, note the applicable exemption under s. 227.16 (2), Stats., in the notice and proceed as provided in s. 2.05 or 2.055, Manual.

2.01(2)(d) (d) The organizational unit that is responsible for preparing the rule.

2.01(2)(e) (e) The name and contact information for a contact person, if desired by the agency.

2.01(3) (3) In addition to the above:

2.01(3)(a) (a) For rules submitted to Rules Clearinghouse for which the rule's scope statement was submitted for publication in the Register on or after June 8, 2011, and is subject to 2011 Wisconsin Act 21, insert the following:

The scope statement for this rule, SS ____, was approved by the Governor on ______ (date), published in Register No. ___ (Register Number), on ______ (Register publication date), and approved by ________ (name of policy making body or individual for the agency as required by s. 227.135 (2), Stats.) on ______ (date).

EXAMPLE: The scope statement for this rule, SS 001-11, was approved by the Governor on July 20, 2011, published in Register No. 668, on August 14, 2011, and approved by the Natural Resources Board on August 28, 2011.

2.01(3)(b) (b) For rules submitted to the Rules Clearinghouse for which the rule's scope statement was submitted for publication in the Register before June 8, 2011, and is not subject to 2011 Wisconsin Act 21, insert the following:

This rule is not subject to s. 227.135 (2), Stats., as affected by 2011 Wis. Act 21. The scope statement for this rule, published in Register No. ____ (Register Number), on ______ (Register publication date), was sent to LRB prior to June 8, 2011 (the effective date of 2011 Wisconsin Act 21).

2.02 2.02 Notice and public hearings.

2.02(1) (1) General rule. Except as provided in s. 227.16, Stats., all rule-making by an agency must be preceded by notice and public hearing as required under ss. 227.17 and 227.18, Stats., or any other specific statute.

2.02(2) (2) Exceptions. Unless another statute specifically requires the agency to hold a hearing prior to promulgating the proposed rule, s. 227.16, Stats., provides that public hearing and notice for a proposed rule is not required if any of the following apply:

2.02(2)(a) (a) The proposed rule brings an existing rule into conformity with a statute that has been changed or enacted or with a controlling judicial decision. [s. 227.16 (2) (b), Stats.]

2.02(2)(b) (b) The proposed rule is adopted as an emergency rule. Notice and public hearing are required after emergency rule adoption. [s. 227.16 (2) (c), Stats., and s. 2.12, Manual.]

2.02(2)(c) (c) The proposed rule is being promulgated as directed by JCRAR under s. 227.26 (2) (b), Stats. [s. 227.16 (2) (d), Stats., and s. 2.05, Manual.]

2.02(2)(d) (d) The proposed rule is published under the 30-day notice procedure in s. 227.16 (2) (e), Stats. [See s. 2.05, Manual.]

2.02(2)(e) (e) The proposed rule consists of one or more forms that impose a requirement that meets the definition of a rule. [s. 227.23, Stats.]

NOTE: Except in the case of an emergency rule, if one of these exceptions is utilized, the agency should do all of the following:

1. Note in its notice of submittal to the Rules Clearinghouse [s. 2.01, Manual] and its proposed rule-making order that the rules are being adopted under the procedure in s. 227.16 (2) (b), (d), or (e), Stats.

2. Complete all other procedural requirements for rule-making as with any other rule.

2.03 2.03 Informal or informational hearings. An agency may hold hearings to solicit public comment on a general subject area that may result in future rule-making. Hearings of this nature do not satisfy the requirement of s. 227.16 (1), Stats. Notices for informal or informational hearings may be published in the Register. [s. 227.16 (6), Stats.]

NOTE: Agencies are encouraged to publish notices of this type in the Register. The Register is sent to subscribers of an agency's code as part of their upkeep subscription.

2.04 2.04 Ten-day notice procedure.

2.04(1) (1) General. If a hearing is required, the agency must follow the notice procedure set forth in this section. [s. 227.17, Stats.]

2.04(2) (2) Submission to LRB . The agency must send written notice of a hearing to LRB for publication in the Register and, if required, to a local newspaper under s. 227.17 (1) (a), Stats.

2.04(3) (3) Submission to legislators. The agency must send written notice of a hearing to every member of the Legislature who has filed a request for a notice in writing with LRB. Upon request, LRB must furnish to an agency the names and addresses of those legislators who have requested notice.

2.04(4) (4) Other notice. The agency is required to take whatever steps it deems necessary to convey notice to interested persons, including sending press releases to local newspapers, mailing notice to interested parties, and making radio spots available in the area where a hearing will be held.

2.04(5) (5) Dates for notice. An agency may not hold a public hearing on a proposed rule until after it has received the Rules Clearinghouse's written report containing the Clearinghouse's review of the proposed rule or until after the end of the initial 20-working day Clearinghouse review period. [s. 227.15 (1), Stats.] However, the agency may notice the hearing before receiving the Clearinghouse Report. The notice must be published in the Register at least 10 calendar days prior to the date set for a hearing. [s. 227.17 (2), Stats.] (The deadlines for filing notices in the Register for 2011-2014 are set forth in s. 2.06, Manual.)

2.04(6) (6) Information included in notice. Under s. 227.17 (3), Stats., the notice must include all of the following:

2.04(6)(a) (a) A statement of the time, date, and place of the hearing.

2.04(6)(b) (b) The text of the proposed rule in the form specified in s. 227.14 (1), Stats., or an informative summary of the effect of the proposed rule and a description of how a copy of the full text of the proposed rule may be obtained from the agency at no charge.

2.04(6)(c) (c) A reference to the statutory authority under which the agency proposes to promulgate the proposed rule and to any statute that the proposed rule interprets.

2.04(6)(d) (d) The summary of the proposed rule required under s. 227.14 (2), Stats. [s. 1.02 (2), Manual.]

NOTE: As neither the plain language analysis under s. 227.14 (2) (a) 5., Stats., nor the informative summary of the effect of the rule under s. 227.17 (3) (b), Stats., has specific statutory elements, a sufficiently informative, though brief, summary in the analysis should meet the requirements of both provisions.

2.04(6)(e) (e) The fiscal estimate required under s. 227.14 (4), Stats., or a summary of the fiscal estimate and a description of how a copy of the full fiscal estimate may be obtained from the agency at no charge. [s. 1.02 (7), Manual.]

2.04(6)(f) (f) The economic impact analysis required under s. 227.137 (2), Stats., any revised economic impact analysis required under s. 227.137 (4), Stats., and any DOA report under s. 227.137 (6), Stats., or a summary of that analysis and report and a description of how a copy of the full analysis and report may be obtained from the agency at no charge. [s. 1.02 (8), Manual.]