2.04(6)(g)(g) An initial regulatory flexibility analysis if the proposed rule will have an effect on small businesses as defined in s. 227.114 (1), Stats., or a statement indicating that the proposed rule will not have an effect on small business, along with the electronic mail address and telephone number of the small business regulatory coordinator. An initial regulatory flexibility analysis must contain all of the following:
2.04(6)(g)1.1. A description of the types of small business that will be affected by the rule.
2.04(6)(g)2.2. A brief description of the proposed reporting, bookkeeping, and other procedures required for compliance with the rule.
2.04(6)(g)3.3. A description of the types of professional skills necessary for compliance with the rule.
[s. 227.17 (3) (f), Stats.]
2.04(6)(h)(h) The address to an Internet site that allows a person to review the proposed rule and make comments.
2.04(6)(i)(i) Any additional matter prescribed by statutes as applicable to the specific agency or class of rules under consideration.
NOTE: The required elements described above may be submitted to LRB in a single electronic document or in separate electronic documents that will be combined in a single notice when published in the Register.
2.04(7)(7) Form. The following 10-day notice form is suggested:
NOTICE IS HEREBY GIVEN That pursuant to ss. (statutory authority for adopting rules) , Stats., the (agency) will hold a public hearing to consider the (creation, amendment, repeal) of rules relating to ______________________.
Hearing Information
[Here insert the date, time, and location of hearing.]
[Here insert the following (or similar language, if applicable): The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact ______________.
Copies of Proposed Rule, Fiscal Estimate, and Economic Impact Analysis (If an agency includes summaries of the rule, fiscal estimate, and economic impact analysis and a description of how a copy of the full text of each may be obtained, LRB does not print the full text of each in the notice.)
[Here describe how a copy of the text of the rule, fiscal estimate, and economic impact analysis may be obtained from the agency at no charge.]
Place Where Comments are to be Submitted and Deadline for Submission
[Here insert the place where comments on the proposed rule should be submitted, including the Internet address where comments may be made, and the deadline for submitting those comments, if the deadline is known at the time the proposed rule is submitted to the Rules Clearinghouse under s. 227.15, Stats., along with any other information necessary to register comments with the agency in regard to the proposed rule.]
Analysis Prepared By (name of agency)
[Here insert the rule summary included in the proposed rule-making order according to the requirements of s. 227.14 (2), Stats., and s. 1.02 (2), Manual.]
Initial Regulatory Flexibility Analysis or Summary
[Here insert the initial regulatory flexibility analysis as described in s. 227.17 (3) (f), Stats., if the proposed rule affects small business.]
Fiscal Estimate
[Here insert the fiscal estimate or the summary of the fiscal estimate required under s. 227.14 (4), Stats. [s. 227.17 (3) (e), Stats.]
Economic Impact Analysis
[Here insert the economic impact analysis or a summary of the analysis required under s. 227.137 (4), Stats. Also insert any revised economic impact analysis and any report prepared by DOA under s. 227.137 (6), Stats. [s. 227.17 (3) (em), Stats.]
Agency contact person
[Insert the name, office, e-mail address, and telephone number of person or persons who can answer questions concerning the proposed rule.]
Text of Proposed Rule
[Here insert the text of the rule in the format required in s. 227.14 (1), (1m), or (1s), Stats. An agency is not required to include the full text of the rule, if an informative summary is included in the notice. [s. 227.17 (3) (b), Stats.] If an agency includes a summary of the rule and a description of how a copy of the full text of the rule may be obtained, LRB does not print the full text of each in the notice unless requested to do so.]
2.052.05 Thirty-day notice procedure.
2.05(1)(1) General. If the agency uses the procedure under s. 227.16 (2) (e), Stats., a public hearing may not be required.
2.05(2)(2) Submission to LRB . If the agency intends to adopt a proposed rule without public hearing, it must send a written notice to LRB for publication in the Register. The notice must include a copy of the proposed rule and the fiscal estimate required under s. 227.14 (4), Stats. The notice shall state that the proposed rule will be adopted without public hearing, unless a petition is received by the agency, within 30 days after publication of the notice, signed by one of the following:
2.05(2)(a)(a) Twenty-five natural persons who will be affected by the rule.
2.05(2)(b)(b) A municipality that will be affected by the rule.
2.05(2)(c)(c) An association that is representative of a farm, labor, business, or professional group that will be affected by the rule.
2.05(3)(3) Petition received. If the agency receives a petition within 30 days after publication of the notice, it may not proceed with the proposed rule until it has given notice and held a public hearing under ss. 227.17 and 227.18, Stats. [See s. 2.02, Manual.]
2.05(4)(4) Petition not received. If the agency does not receive a petition within 30 days after publication of the notice, it may submit the proposed rule to the Governor for approval under s. 227.185, Stats.
2.05(5)(5) Form. The following 30-day notice form is suggested:
NOTICE IS HEREBY GIVEN That pursuant to ss. (statutory authority for adopting rules) , Stats., and interpreting ss. , Stats., and according to the procedure set forth in s. 227.16 (2) (e), Stats., the (agency) will adopt the following rule as proposed in this notice, without public hearing unless, within 30 days after publication of this notice (LRB to insert date), the (agency) is petitioned for a public hearing by 25 natural persons who will be affected by the rule; a municipality that will be affected by the rule; or an association that is representative of a farm, labor, business, or professional group that will be affected by the rule:
Then proceed as with the 10-day notice form described in s. 2.04 (7), Manual, commencing with the "Analysis Prepared by Agency," except include the full text of the rule, fiscal analysis, and economic impact analysis in all cases.
2.0552.055 Procedure for rules adopted under s. 227.16 (2) (b) or (d), or s. 227.23, Stats.
2.055(1)(1) Unlike rules adopted without hearing under the 30-day notice procedure under s. 227.16 (2) (e), Stats., there are no specific notice and procedural requirements for rules promulgated without notice: (1) to bring an existing rule into conformity with a statute that has been changed or enacted or with a controlling judicial decision under s. 227.16 (2) (b), Stats.; (2) as directed by JCRAR under s. 227.26 (2), Stats.; or (3) to promulgate a form imposing a requirement that meets the definition of a rule under s. 227.23, Stats. These rules are subject to all requirements applicable to a proposed rule filed with the Rules Clearinghouse under s. 227.14, Stats. [s. 3.01, Manual], and to the requirement that notice of the filing of the rule be published in the Register under s. 227.14 (4m), Stats. [s. 2.01, Manual.]
2.055(2)(2) As with all rules, a place to submit comments and a deadline for submitting those comments is required as a part of the rule summary under s. 227.14 (2) (a) 8., Stats. Upon the expiration of the comment period and receipt of the written report from the Rules Clearinghouse, the agency may proceed with the final draft of the rule-making order for submission to the Governor for approval and legislative review. [s. 2.09, Manual.] At a minimum, it is suggested that in addition to the elements described in s. 2.01, Manual, the following be published in the Register:
2.055(2)(a)(a) The specific purpose of the rule-making.
2.055(2)(b)(b) The place where comments on the proposed rule should be submitted and the deadline for submitting those comments.
2.055(2)(c)(c) The text of the proposed rule in the form specified in s. 227.14, Stats., including the plain language analysis, fiscal estimate, and economic impact analysis, or an informative summary of the effect of the proposed rule and a description of how a copy of the full rule, including the analysis, fiscal estimate, and economic impact analysis, may be obtained from the agency at no charge. In the case of forms promulgated under s. 227.23, Stats., the text of the rule is the form. If a proposed rule promulgates forms and other rule text, the hearing exception does not apply.
2.062.06 Deadlines for filing notices. The filing deadlines for publication of all materials except final rules in the Register in 2011 to 2014 are as follows. See s. 2.11 (2), Manual, for filing deadlines for final rules.
Mid-Month
Register
End-of-the-Month
Register
2011
November 1
November 15
December 1
December 15
2012
December 30, 2011
January 13
February 1
February 15
March 1
March 15
April 2
April 13
May 1
May 15
June 1
June 15
July 2
July 13
August 1
August 15
September 3
September 14
October 1
October 15
November 1
November 15
December 3
December 14
2013
December 28, 2012
January 15
February 1
February 15
March 1
March 15
April 1
April 15
May 1
May 15
June 3
June 14
July 1
July 15
August 1
August 15
August 30
September 13
October 1
October 15
November 1
November 15
December 2
December 13
2014
December 13, 2014
January 15
February 3
February 14
March 3
March 14
April 1
April 15
May 1
May 15
June 2
June 13
July 1
July 15
August 1
August 15
September 2
September 15
October 3
October 17
November 3
November 14
December 1
December 15
2.072.07 Conduct of rule-making hearings.
2.07(1)(1) Purpose of hearings. A public hearing on a proposed rule is intended to elicit the greatest possible public participation in presenting facts, views, or arguments on the proposed rule. The hearing is not a mere formality.
NOTE: As stated in HM Distributors of Milwaukee v. Dept. of Agri., 55 Wis. 2d 261, 268 (1972): "The purpose of a public hearing is to give interested parties not only a chance to be heard, but to have an influence in the final form of the regulations involved."
NOTE: Agencies should hold rule-making hearings in facilities that are accessible to individuals with disabilities. Agencies should note in their rule-making notice of hearing where there is an accessible entrance for the building in which the hearing is to be held.
2.07(2)(2) Procedure.
2.07(2)(a)(a) The procedure to be followed in conducting rule-making hearings is set forth in s. 227.18, Stats. This procedure does not supersede other statutory procedures relating to the specific agency or to the proposed rule or class of rules. The agency, through its authorized representative, must do all of the following:
2.07(2)(a)1.1. Conduct the public hearing; explain the purpose of the hearing; and describe how testimony will be received.
2.07(2)(a)2.2. Present, at the beginning of the hearing, a summary of the factual information on which the proposed rule is based, including information obtained from advisory committees, informal conferences, or consultations.
2.07(2)(a)3.3. Afford each interested person an opportunity to present facts, views, or arguments in writing, whether or not there was an opportunity to present them orally.
2.07(2)(a)4.4. Keep a record of the hearing that the agency deems desirable and feasible.
NOTE: A tape recording of a hearing is acceptable. [See HM Distributors, cited in the first note following s. 2.07 (1), Manual.]
2.07(2)(b)(b) The agency may:
2.07(2)(b)1.1. Limit oral presentations if the hearing would be unduly lengthened by reason of repetitious testimony.
2.07(2)(b)2.2. Question or allow others present to question persons appearing.
2.07(2)(b)3.3. Administer oaths or affirmations to any person appearing.
2.07(2)(b)4.4. Continue or postpone the hearing to a time and place as it determines.
2.07(3)(3) Absence of officer or quorum. If the agency representative, or a quorum of the board or commission responsible for promulgating the proposed rule, is not present at the hearing, all of the following procedures apply [s. 227.18 (3), Stats.]:
2.07(3)(a)(a) At the beginning of a hearing, the presiding officer must inform those present that any person who presents testimony at the hearing may present arguments to the agency officer, board, or commission prior to adoption of the proposed rule, if, at the hearing, the person makes such a request in writing to the presiding officer.
2.07(3)(b)(b) If required by the agency, the arguments under par. (a), above, must be presented to the agency in writing. If oral arguments are permitted by the agency, the agency may impose reasonable limitations on the length and number of appearances to conserve time and preclude undue repetition.
2.07(3)(c)(c) If a record of the hearing has been made, arguments before the agency under par. (a), above, are limited to the record of the hearing.
2.082.08 Incorporation of standards by reference.
2.08(1)(1) General. With the consent of the Attorney General, an agency may incorporate standards, established by technical societies and organizations of recognized national standing, by reference in a rule without reproduction of the standards in full. Consent for incorporation will be granted only if the rule is of limited public interest and the incorporated standards are readily available in published form or are available on optical disk or in another electronic format. The analysis to the rule must indicate that consent has been given. [s. 227.21 (2), Stats.]
NOTE: Incorporation of standards by reference may raise legal questions regarding improper delegation of authority by the rule-making agency. The issue arises when a rule incorporates external material adopted by an independent entity and changes to the material that may be adopted by that entity after the material is incorporated. This raises the question of whether the agency has exceeded its rule-making authority by delegating its authority to the external source to dictate revisions to the rules. A court would be unlikely to strike down the rule as an improper delegation of rule-making power if external material were incorporated into a rule without incorporating later changes. In that instance, the agency, and the Legislature through its review process, theoretically have examined all relevant external material and passed judgment on its value.
For a more detailed discussion of the concept of improper delegation as applied to legislative authority, see "Adoption by Reference" reproduced from the LRB Bill Drafting Manual, which may be accessed from the electronic version of this Manual at:
2.08(2)(2) Written request. If an agency desires to incorporate standards in a rule by reference, the agency must submit a written request to the Attorney General. The request, with a copy of the proposed rule and the standards, must contain information regarding all of the following:
2.08(2)(a)(a) Whether the rule is of limited public interest.
2.08(2)(b)(b) The extent of unwarranted expense if permission to incorporate the standards by reference is not granted.
2.08(2)(c)(c) Whether the standards were established by a technical society or organization of recognized national standing.
2.08(2)(d)(d) Whether the standards are readily available in published form or are available on optical disk or in another electronic format.
NOTE: A request for the Attorney General's consent should be sent to the Attorney General's office, Attn.: Administrator, Division of Legal Services, and mailed to: P.O. Box 7857, Madison, WI 53707-7857. The request should be initiated early in the rule-making process so that permission is granted prior to submitting the final draft proposed rules to the Governor under s. 227.185, Stats.
2.08(3)(3) Format.
2.08(3)(a)(a) If the Attorney General consents to incorporating standards by reference in a rule, the reference is to the specific issue or issues of books or pamphlets in which the standards are published.
2.08(3)(b)(b) The rule incorporating standards by reference must state how the incorporated material may be obtained. This is to be done in a note following the provision of the rule in which the reference occurs. The books and pamphlets containing the standards must be filed at the office of the agency and LRB.
2.08(4)(4) Amendments. If standards that have been adopted by reference are changed, an agency may adopt the changed version only with the written consent of the Attorney General and amendment of the affected rule as necessary to identify the standard adopted. The changes cannot be adopted prospectively or automatically.
NOTE: See the note to s. 2.08 (1), above.
2.08(5)(5) Secondary standards. If a standard to be incorporated by reference contains secondary standards, the agency must expressly delete or adopt the secondary standard by rule and make a separate request for incorporation of the secondary standards by reference.
NOTE: The question of incorporating by reference provisions of the U. S. Code or Code of Federal Regulations is discussed in 59 Atty. Gen. 31 and 68 Atty. Gen. 9. Factors affecting the incorporation decision are whether the federal material is substantive law, whether there is an attempt to incorporate future amendments of the federal material, whether the material is of limited public interest, and whether the material is readily available to the public. If an agency is planning to incorporate federal laws or regulations in the administrative code, it should first contact the attorney general's office for an opinion on the validity of its intended action.
2.092.09 Submission of rules to the Governor and Legislature.
2.09(1)(1) Approval by Governor. After conducting any required hearing and making any necessary revisions, an agency must submit its proposed rule-making order in final draft form to the Governor for approval under s. 227.185, Stats. Upon receipt of the Governor's written approval, the agency may submit the proposed rule to the Chief Clerk in each house of the Legislature as provided in s. 227.19, Stats. [See s. 3.02, Manual, regarding submission of proposed rules to the Legislature.]
NOTE: Final draft rules should be submitted for approval by the Governor to: SBOAdminRules@wisapps.wi.gov. 2011 Executive Order #50 states that an agency generally must submit its proposed rule in final draft form to the Governor for approval within 30 calendar days after the public comment period.
2.09(2)(2) Submission to presiding officers. A statement that a proposed rule has been submitted to the presiding officers must be sent to LRB for publication in the Register. For rules for which the scope statement is submitted for publication on or after June 8, 2011 (the effective date of 2011 Wisconsin Act 21), insert a statement indicating the date of the Governor's written approval of the rule under s. 227.185, Stats. For rules for which the statement of scope was submitted for publication prior to June 8, 2011, insert the following:
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