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.

2.08 2.08 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:

ADOPTION BY REFERENCE

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.

2.09 2.09 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: [e-mail]. 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:

This rule is not subject to s. 227.185, Stats. The statement of scope for this rule, published in Register ____ (Register Number), on ______ (Register publication date), was sent to LRB prior to June 8, 2011.

2.10 2.10 Form of rule-making order.

2.10(1) (1) Sample order. Under s. 227.14, Stats., an agency should adhere substantially to the following form in preparing a rule-making order for publication or distribution and in preparing an adopted rule for filing with LRB.

(ORDER) or (PROPOSED ORDER) of the (Agency)

[Here insert the introductory clause under s. 1.02 (1), Manual.]

Analysis prepared by (name of agency).

(Here insert analysis.)

Text of the rule.

This rule shall take effect on ______ [as provided in s. 227.22 (2) (intro.), Stats., _______], [pursuant to authority granted by s. 227.22 (2) (a) or (b), Stats.] [as an emergency rule. Facts constituting the emergency are as follows:]

[Use the alternative that fits the particular situation.]

Dated: _____________ Agency: ________________________________
(signature and title of officer)

2.10(2) (2) Additional reference. See ss. 1.02 and 1.04, Manual, for further discussion of rule-making orders.

2.11 2.11 Filing rule.

2.11(1) (1) Certified copy.

2.11(1)(a) (a) When promulgated, a certified copy of the rule is filed by the agency with LRB for incorporation in the Administrative Code and publication in the Register. No rule is valid until the certified copy has been filed. [ss. 227.20 and 227.21, Stats.] Except as noted in s. 2.115, Manual, the rule is effective on the first day of the month commencing after publication. [s. 227.22, Stats.]

NOTE: Once the rule is filed, no changes may be made, except for the correction of obvious typographical errors that do not affect the substance of the rule under s. 35.17, Stats., or items that can be revised under s. 13.92 (4), Stats. LRB has a duty to publish the rules as filed. Filed final rules may be changed only by amendment or repeal through the rule-making process. [See 52 Atty. Gen. 315.]

NOTE: In addition to the certified copy of the rule, LRB requires an electronic copy of the rule as an attachment via e-mail. The electronic copy may be delivered prior to the filing of the certified copy. LRB requests that the electronic copy be e-mailed as soon as possible. The e-mail address is [e-mail].

2.11(1)(b) (b) Certified copies of rules filed with LRB should be prepared on 8-1/2 by 11 inch paper, using the following form:

STATE OF WISCONSIN)
) SS
(AGENCY) )

I, _____________________ (Chair)(Director)(Secretary) of the _________________ (board)(department)(commission) and custodian of the official records, certify that the annexed rules, relating to (subject) , were duly approved and adopted by this (board)(department)(commission) on (date).

I further certify that this copy has been compared by me with the original on file in this (board)(department or)(commission) and that it is a true copy of the original, and of the whole of the original.

IN TESTIMONY WHEREOF, I have hereuntoset my hand and affixed the official seal* of the (agency) at (office, building or address) in the city of Madison, this ________ day of ________, 20____.
*SEAL, if any
(officer)

NOTE: If the agency uses the ORDER ADOPTING RULES and CERTIFICATE forms shown in this paragraph and s. 2.10, Manual, and places the CERTIFICATE at the top, followed by the ORDER ADOPTING RULES, it will meet the filing and certification requirements of LRB.

2.11(1)(c) (c) If the filed rule contains graphics, such as maps, that material is to be submitted electronically as JPEG, GIF, or TIFF files.

2.11(1)(d) (d) When an agency files a rule that was submitted to the SBRRB under s. 227.14 (2g), Stats., the agency must include with the rule whichever of the following is applicable:

2.11(1)(d)1. 1. The final regulatory flexibility analysis or a summary of the analysis prepared under s. 227.19 (3), Stats., and a summary of the comments of the legislative standing committees.

2.11(1)(d)2. 2. The statement of the SBRRB's determination that the rule will not have a significant economic impact on a substantial number of small businesses, including the stated reason for the board's decision.

2.11(2) (2) Publication of rules; deadlines. Except in the case of an extremely large rule-making order or in times of unusual rule-filing volume, any rule received by LRB on or before the 15th day of a given month will be published in the end-of-month Register for the next month, effective on the first day of the month following publication, unless a different future effective date is designated by the agency. Rules will be processed in the order received by LRB. [See s. 2.11 (1), Manual.]

EXAMPLE: A rule order filed between August 16 and September 15 will be published in the October 31 Register and will be effective November 1.

NOTE: LRB will process the rules for publication in the second end-of-month Register published after the applicable filing deadline unless the size of a rule or unusual work volume will prevent LRB from publishing the rule in that Register. In that case, the agency will be contacted and alternatives considered. Small rules may be accepted after the 15th day of a month for publication at the end of the following month with the approval of LRB. Deadlines for filing rules are necessary to enable LRB to accept new material up to the latest possible date, consistent with requirements of time for processing, composition, proofreading, printing, and distribution of the material. The cooperation of those agencies that contact LRB and file material in advance of the deadlines is most helpful.

2.11(3) (3) Publication of rules; procedure. After rules are filed with LRB, the following occurs:

2.11(3)(a) (a) LRB staff incorporates the rule into the appropriate Administrative Code chapters.

2.11(3)(b) (b) A proof copy of each affected chapter with questions, errors, changes, and corrections noted is sent to the agency for proofreading.

2.11(3)(c) (c) The proofed copy, with errors, comments, and responses to LRB questions and comments marked on the copy by the agency, is returned to LRB for corrections. A second proof copy is not sent to agencies for review unless specifically requested.

2.11(3)(d) (d) The corrected copy is sent for printing approximately two weeks before the end of the month of printing.

2.11(3)(e) (e) The printed chapters are mailed as a part of the Register and published on the Internet before the end of the month.

2.115 2.115 Effective date of rules. A rule is effective on the first day of the month following publication, unless any of the following apply:

2.115(1) (1) A statute sets a different effective date for the rule.

2.115(2) (2) A later date is set by the agency in the adopted rule-making order.

2.115(3) (3) The rule is adopted as an emergency rule under s. 227.24, Stats.

2.115(4) (4) The publication of the Register is delayed beyond the end of the month.

NOTE: If the Register is delayed, the effective date will be determined pursuant to s. 227.22 (4), Stats.

2.115(5) (5) The rule has a significant economic impact on small business, as defined in s. 227.114 (1), Stats., in which case the rule as it applies to small businesses is effective no earlier than the first day of the third month beginning after publication. The determination of significant economic impact is made by the SBRRB under s. 227.14 (2g), Stats. Both the general effective date and the effective date for small businesses should be noted in the final order. In order to avoid confusion, an agency may wish to consider adopting the first day of the third month after publication as a single effective date for the rule.

EXAMPLE: A rule is published in the November Register. The rule has a significant impact on small business. The rule would be effective on the following February 1.

2.12 2.12 Emergency rules.

2.12(1) (1) Purpose. If preservation of the public peace, health, safety, or welfare necessitates placing a rule into effect prior to the time it could be effective if the agency were to comply with the notice, hearing, legislative review, and publication requirement, of the statutes, the agency may adopt that rule as an emergency rule. [s. 227.24, Stats.]

2.12(2) (2) Statement of scope. In order to promulgate an emergency rule, an agency must first prepare a scope statement of the proposed emergency rule as provided in s. 227.135, Stats. [See s. 2.005, Manual.] As with proposed permanent rules, no state employee or official may perform any activity in connection with the drafting of a proposed emergency rule except for an activity necessary to prepare the scope statement of the proposed emergency rule until the Governor and the individual or body with policy-making powers over the subject matter of the proposed emergency rule approve the statement.

NOTE: 2011 Executive Order #50 provides that an agency that intends to promulgate both an emergency rule and a proposed permanent rule that are identical in substance may submit one scope statement indicating that intent.

2.12(3) (3) Approval of rule by Governor.

2.12(3)(a) (a) An agency must submit the proposed emergency rule in final draft form to the Governor for approval. An agency may not file an emergency rule with LRB and an emergency rule may not be published until the Governor approves the emergency rule in writing.

2.12(3)(b) (b) Insert the following in the rule, prior to the introductory clause:

The statement of scope for this rule, SS ____, 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).

This emergency rule was approved by the Governor on __________ (date).

EXAMPLE: The statement of scope 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. This emergency rule was approved by the Governor on September 15, 2011.

2.12(4) (4) Publication and filing.

2.12(4)(a) (a) An emergency rule takes effect upon publication in the official state newspaper or on a later date as specified in a statement published with the rule. An emergency rule remains in effect only for a period of 150 days unless it is extended under s. 227.24 (2), Stats. [see sub. (5), below], or is a rule promulgated under s. 186.012 (4), 215.02 (18), or 220.04 (8), Stats.

NOTE: An emergency rule need only be published one time to meet the publication requirement of s. 227.24, Stats. It is the agency's responsibility to contact the official state newspaper for publication of an emergency rule. The Wisconsin State Journal is currently the official state newspaper. See DOA purchasing bulletin 15-83330-05L. An agency may contact DOA's Bureau of Procurement, for assistance in preparing a purchase order for the publication of an emergency rule. The general telephone for the bureau is [phone]. DOA has prepared a form [DOA 3539] that may be used when sending material for legal notices including emergency rules. Forms may be downloaded from the Bureau of Procurement's website at: http://vendornet.state.wi.us/vendornet/doaforms/doafrm.ASP. The Bureau of Procurement suggests that all orders be faxed to the Wisconsin State Journal [[phone]].

2.12(4)(b) (b) In addition to publication, a certified copy of the emergency rule must be filed with LRB in order for the rule to be valid. LRB inserts in the notice section of each issue of the Register a brief description of emergency rules currently in effect and publishes the rule and the rule's fiscal estimate on its Internet site.

NOTE: In addition to the certified copy of the rule, LRB requires an electronic copy of the rule and fiscal estimate as an attachment via e-mail. The electronic copy may be delivered prior to the filing of the certified copy. LRB requests that the electronic copy be e-mailed as soon as possible. The e-mail address is [e-mail].

2.12(4)(c) (c) When an emergency rule is adopted, the agency must mail a copy of the rule, the statement of emergency finding or a statement that the rule is promulgated at the direction of JCRAR under s. 227.26 (2) (b), Stats., and the rule's fiscal estimate, to each member of the Legislature and to the Chief Clerk of each house of the Legislature. The required mailing may be by e-mail. The agency must take other steps it considers feasible to make the rule known to persons who will be affected by it.

2.12(4)(d) (d) If the emergency rule may have an economic impact on small business as defined in s. 227.114 (1), Stats., the agency must submit a copy of the emergency rule to the SBRRB on the same day it sends copies to the Legislature.

2.12(5) (5) Extension of emergency rules.