2005 WISCONSIN ACT 249
An Act to repeal 227.114 (7); to amend 227.114 (5), 227.115 (2), 227.116 (4) (intro.) and (5), 227.135 (1) (e), 227.135 (2) and (3), 227.137 (2) (intro.), 227.138 (2) (intro.), 227.14 (2) (a) (intro.), 227.14 (2) (a) 4., 227.14 (2g) (intro.), 227.14 (2m) (title), 227.14 (4m), 227.15 (1m) (intro.), 227.17 (2), 227.17 (3) (d), 227.19 (2), 227.19 (3) (intro.), 227.19 (4) (b) 1. (intro.), 227.19 (4) (b) 2., 227.19 (4) (b) 6., 227.19 (4) (c), 227.19 (5) (a), 227.19 (5) (b) 1. (intro.), 227.19 (5) (b) 2., 227.19 (5) (b) 4., 227.19 (5) (e), 227.19 (5) (g) (intro.), 227.19 (6) (b), 227.20 (1), (2), and (3) (intro.), 227.21 (2) (b), 227.22 (2) (e), 227.24 (2) (am), 227.24 (2) (c), 227.25 (3), 227.26 (2) (f), 227.26 (2) (h), 227.26 (2) (j), 227.27 (2), 227.30 (1), 227.30 (3), 227.40 (2) (f) and 601.41 (3) (b); and to create 227.14 (2) (a) 7. and 8., 227.14 (6) (d), 227.19 (3) (g), 227.19 (3) (h), 227.19 (4) (b) 3m. and 227.26 (2) (L) of the statutes; relating to: making technical and minor substantive changes in the administrative rule-making process.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Joint Legislative Council prefatory note: On May 4, 2004, the co-chairs of the joint legislative council directed the legislative council staff to examine current laws relating to the procedures used for the promulgation of administrative rules and to develop proposed legislation that modifies current statutory language, codifies practices used in the process, coordinates statutory changes made in the 2003 session of the legislature, and makes minor substantive changes to the law.
In order to fulfill this request, the legislative council staff sought comments from rule-promulgating state agencies, the chief clerks of the legislature, and the revisor of statutes. This bill, as described in notes accompanying each Section, responds to many of the comments the legislative council staff received as well as to issues noted by the experience of the legislative council staff itself.
249,1
Section
1. 227.114 (5) of the statutes is amended to read:
227.114 (5) Prior to the notice required under s. 227.17 (1) (a), the agency shall notify the secretary of commerce and the small business ombudsman clearinghouse that it proposes to promulgate a rule that will have an effect on small businesses.
Note: Current law requires a rule-promulgating agency to notify the secretary of commerce and the small business ombudsman clearinghouse when the agency proposes to promulgate a rule that will have an effect on small businesses. This Section deletes the reference to the small business ombudsman clearinghouse, since the clearinghouse no longer exists.
249,2
Section
2. 227.114 (7) of the statutes is repealed.
Note: Current law requires each agency, for the 5-year period beginning after December 31, 1983, to review the agency's rules to reduce their impact on small businesses. This Section repeals the statutory provision, since it is no longer applicable.
249,3
Section
3. 227.115 (2) of the statutes is amended to read:
227.115 (2) Report on rules affecting housing. If a proposed rule directly or substantially affects the development, construction, cost, or availability of housing in this state, the department, through the division of housing, shall prepare a report on the proposed rule before it is submitted to the legislative council staff under s. 227.15. The department may request any information from other state agencies, local governments or individuals or organizations that is reasonably necessary for the department to prepare the report. The department shall prepare the report within 30 days after the rule is submitted to the department.
Note: Current law requires the department of commerce, through its division of housing, to prepare a report on a proposed rule that directly or substantially affects the development, construction, cost, or availability of housing in Wisconsin. This Section removes the reference to the division of housing, since the department no longer has such a division.
249,4
Section
4. 227.116 (4) (intro.) and (5) of the statutes are amended to read:
227.116 (4) (intro.) If an agency fails to review and make a determination on a permit application within the time period specified in a rule or law, for each such failure the agency shall prepare a report and submit it to the business development assistance center department of commerce within 5 business days of the last day of the time period specified, setting forth all of the following:
(5) If an agency fails to review and make a determination on a permit application within the time period specified in a rule or law, upon completion of the review and determination for that application, the agency shall notify the business development assistance center department of commerce.
Note: Current law requires that an agency make various reports to the business development assistance center when it fails to review and make a determination on a permit application within the time specified in a rule or law. This Section requires that the information be delivered to the department of commerce, since the business development assistance center no longer exists.
249,5
Section
5. 227.135 (1) (e) of the statutes is amended to read:
227.135 (1) (e) A description of all of the entities that will may be affected by the rule.
Note: Current law requires that an agency scope statement include a description of all of the entities that will be affected by a proposed rule of the agency. This Section requires the scope statement to describe all of the entities that may be affected by the proposed rule, because it may be impossible for an agency to be aware of every entity that will be affected by the proposed rule.
249,6
Section
6. 227.135 (2) and (3) of the statutes are amended to read:
227.135 (2) Until the individual or body with policy-making powers over the subject matter of a proposed rule approves a statement of the scope of the proposed rule, a state employee or official may not perform any activity in connection with drafting the proposed rule except for an activity necessary to prepare the statement of the scope of the proposed rule. The individual or body with policy-making powers may not approve a statement until at least 10 days after publication of the statement in the register as required under sub. (3). If the individual or body with policy-making powers over the subject matter of a proposed rule does not disapprove the statement of the scope of the proposed rule within 30 days after the statement is presented to the individual or body, or by the 11th day after publication of the statement in the register, whichever is later, the statement is considered to be approved.
(3) The agency shall send the statement of the scope of a proposed rule to the revisor for publication in the register. On the same day that the agency sends the statement to the revisor, the agency shall send a copy of the statement to the secretary of administration. The individual or body with policy-making powers over the subject matter of a proposed rule may not take action on a statement of the scope of the proposed rule until at least 10 days after publication of the statement in the register.
Note: Current law states that if an individual or body with policy-making powers does not disapprove a scope statement within 30 days after the statement is presented to that individual or body, the statement is considered to be approved and work may begin on drafting the proposed rule. However, current law also states that the individual or body may not take action on a scope statement until at least 10 days after publication of the statement in the Wisconsin administrative register. Since the latter date may occur more than 30 days after the scope statement is presented to the individual or body, this Section provides that if the individual or body does not disapprove the scope statement within 30 days after the statement is presented to the individual or body, or by the 11th day after publication of the statement in the register, whichever is later, the statement is considered to be approved.
249,7
Section
7
. 227.137 (2) (intro.) of the statutes is amended to read:
227.137 (2) (intro.) After an agency publishes a statement of the scope of a proposed rule under s. 227.135, and before the agency submits the proposed rule to the legislative council for review under s. 227.15 legislature for review under s. 227.19 (2), a municipality, an association that represents a farm, labor, business, or professional group, or 5 or more persons that would be directly and uniquely affected by the proposed rule may submit a petition to the department of administration asking that the secretary of administration direct the agency to prepare an economic impact report for the proposed rule. The agency shall prepare an economic impact report before submitting the proposed rule to the legislative council staff under s. 227.15 legislature for review under s. 227.19 (2) if the secretary of administration directs the agency to prepare that report. The secretary of administration may direct the agency to prepare an economic impact report for the proposed rule before submitting the proposed rule to the legislative council staff under s. 227.15 legislature for review under s. 227.19 (2). The secretary of administration shall direct the agency to prepare an economic impact report for the proposed rule before submitting the proposed rule to the legislative council staff under s. 227.15 legislature for review under s. 227.19 (2) if the secretary determines that all of the following apply:
Note: Current law provides that a request for an economic impact report may be made with respect to a proposed rule offered by the departments of agriculture, trade and consumer protection; commerce; natural resources; transportation; or workforce development. If a report is requested, the report must be prepared before the agency submits the proposed rule to the legislative council staff for review. In order to abide by this requirement, an affected agency must allow the period for making the request to expire. A request for the economic impact report must be submitted to the department of administration no later than 90 days after the publication of the scope statement or no later than 10 days after publication of the notice for a public hearing regarding the proposed rule, whichever is earlier. Sections 7 and 8 allow an agency to submit a proposed rule to the legislative council staff prior to the preparation of an economic impact report. Although, under current law, both the department of administration and the legislative council staff will review such a rule for the statutory authority of the agency to promulgate it, the reports of each body are fundamentally different; the economic impact report focuses on the economic effects of the proposed rule, while the legislative council staff report is concerned with the clarity of the proposed rule and editorial matters. There is no need to delay the rule-making process with respect to rules that will never be the subject of a request for an economic impact report. When such a report is requested, the preparation of the legislative council staff report should have no impact on the department's independent review of the proposed rule. Under this Section, an agency that is directed to prepare an economic impact report must finalize the report before the proposed rule is submitted to the legislature for review under s. 227.19 (2), stats.
249,8
Section
8
. 227.138 (2) (intro.) of the statutes is amended to read:
227.138 (2) (intro.) If an economic impact report will be prepared under s. 227.137 (2) regarding a proposed rule, the department shall review the proposed rule and issue a report. The agency shall not submit a proposed rule to the legislative council staff for review under s. 227.15 (1) legislature for review under s. 227.19 (2) until the agency receives a copy of the department's report and the approval of the secretary of administration. The report shall include all of the following findings:
Note: See Note to Section 7.
249,9
Section
9. 227.14 (2) (a) (intro.) of the statutes is amended to read:
227.14 (2) (a) (intro.) An agency shall prepare in plain language an analysis of each proposed rule, which shall be printed with the as a preface to the text of the proposed rule when it is published or distributed. The analysis shall include all of the following:
Note: Current law requires an agency to prepare an analysis of each proposed rule. The analysis must be printed with the proposed rule when it is published or distributed. Some agencies have interpreted this requirement to mean that the analysis must be printed both as a separate document attached to the proposed rule and as part of the preface to the proposed rule. This Section clarifies that double publication is not required; the analysis need be published only once as a preface to the text of the proposed rule.
249,10
Section
10. 227.14 (2) (a) 4. of the statutes is amended to read:
227.14 (2) (a) 4. A comparison of
with similar rules in adjacent states Illinois, Iowa, Michigan, and Minnesota.
Note: Current law requires that an agency prepare a plain language analysis of a proposed rule. One of the items that must be included is a comparison with similar rules in adjacent states. This Section specifically names the 4 adjacent states.
249,11
Section
11. 227.14 (2) (a) 7. and 8. of the statutes are created to read:
227.14 (2) (a) 7. The electronic mail address and telephone number of an agency contact person for the proposed rule.
8. The place where comments on the proposed rule should be submitted and the deadline for submitting those comments, if the deadline is known at the time the proposed rule is submitted to the legislative council staff under s. 227.15.
Note: Section 227.15 (1m), stats., requires the legislative council staff to create and maintain an Internet site that includes a copy of each proposed rule it receives. Among the information that is required to be included on the site is the electronic mail address and a telephone number of an agency contact person for each proposed rule and a place where comments on the proposed rule should be submitted and a deadline for submitting those comments. This Section requires an agency to place in its rule analysis: (1) the electronic mail address and telephone number of an agency contact person for the proposed rule; and (2) the place where the comments on the proposed rule should be submitted and the deadline for submitting those comments, if the deadline is known at the time the proposed rule is submitted to the legislative council staff. This information then will be placed on the Internet site when the entire rule is posted there by the legislative council staff.
249,12
Section
12. 227.14 (2g) (intro.) of the statutes is amended to read:
227.14 (2g) (title) Fiscal effect of rule Review by the small business regulatory review board. On the same day that an agency publishes a proposed rule under this section submits to the legislative council staff under s. 227.15 a proposed rule that may have a significant economic impact on small businesses, the agency shall submit the proposed rule and, the analysis required under sub. (2), and a description of its actions taken to comply with s. 227.114 (2) and (3) to the small business regulatory review board. The board may use cost-benefit analysis to determine the fiscal effect of the rule on small businesses and shall determine whether the agency has complied with subs. (2) and (2m) and s. 227.114 (2) and (3). Except as provided in subs. (1m) and (1s), each proposed rule shall include provisions detailing how the rule will be enforced. If the board determines that the rule does not include an enforcement provision or that the agency failed to comply with sub. (2) or (2m) or s. 227.114 (2) or (3), the board shall notify the agency of that determination and ask the agency to comply with any of those requirements. In addition, the board may submit suggested changes in the proposed rule to the agency, including proposals to reduce the use of cross-references in the rule. The board shall send a report of those suggestions and of any notice of failure to include enforcement provisions or to comply with sub. (2) or (2m) or s. 227.114 (2) or (3) to the legislative council staff. The notification to the agency may include a request that the agency do any of the following:
Note: Current law requires an agency to submit a proposed rule to the small business regulatory review board on the same day that it publishes a proposed rule that may have a significant economic impact on small businesses. Agencies have found the reference to publication confusing. This Section provides that an agency proposing a rule that may have a significant economic impact on small businesses must submit the rule to the small business regulatory review board on the same day that it submits the proposed rule to the legislative council staff for review under s. 227.15, stats. In addition, the statute is amended to require the agency to describe how it has attempted to reduce the impact of the proposed rule on small businesses as mandated under s. 227.114 (2) and (3), stats. Finally, the title to s. 227.14 (2g), stats., is amended to more accurately reflect its content.
249,13m
Section 13m. 227.14 (2m) (title) of the statutes is amended to read:
227.14 (2m) (title) Quality of agency data and reduction of cross references.
249,14
Section
14. 227.14 (4m) of the statutes is amended to read:
227.14 (4m) Notice of submittal to
joint legislative council staff. On the same day that an agency submits a proposed rule to the joint legislative council staff under s. 227.15, the agency shall prepare a written notice of the agency's submittal to the joint legislative council staff. The notice shall include a statement of the date on which the proposed rule has been submitted to the joint legislative council staff for review, of the subject matter of the proposed rule and of whether a public hearing on the proposed rule is required, and shall identify the organizational unit within the agency that is primarily responsible for the promulgation of the rule. The notice shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule. The agency shall send the notice to the revisor for publication in the register. On the same day that the agency sends the notice to the revisor, the agency shall send a copy of the notice to the secretary of administration.
Note: This Section make references to the legislative council staff consistent with references in the rest of ch. 227, stats.
249,15
Section
15. 227.14 (6) (d) of the statutes is created to read:
227.14 (6) (d) If a proposed rule is withdrawn, the proposed rule may be promulgated only by commencing the rule-making procedure again with the preparation, under s. 227.135, of a statement of the scope of the proposed rule that the agency plans to promulgate.
Note: This Section clarifies that when a proposed rule is withdrawn from the promulgation process in accordance with s. 227.14 (6), stats., the proposed rule may be promulgated only by commencing the rule-making procedure again, beginning with the preparation of a scope statement under s. 227.135, stats.
249,16
Section
16. 227.15 (1m) (intro.) of the statutes is amended to read:
227.15 (1m) Internet access to proposed rule. (intro.) The joint legislative council staff shall create and maintain an Internet site that includes a copy of or link to each proposed rule received under sub. (1) in a format that allows the site to be searched searching using keywords. Each agency shall provide the joint legislative council staff with the proposed rules and other information needed to comply with this subsection in the format required by the joint legislative council staff. The Internet site shall include a section devoted to identify or provide a link to a site that identifies proposed rules affecting small businesses, as defined in s. 227.114 (1). The Internet site shall also include or provide a link to all of the following:
Note: Current law requires the joint legislative council to create and maintain an Internet site that includes certain information about proposed administrative rules. This Section allows the required information to be provided by a link on the site created and maintained by the legislative council staff. This Section also makes references to the legislative council staff consistent with references in the rest of ch. 227, stats.
249,17
Section
17. 227.17 (2) of the statutes is amended to read:
227.17 (2) The notice under sub. (1) shall be given at least 10 days prior to the date set for a hearing. Notice through the register is considered to have been given on the first or 15th day of the month following publication effective date of the issue of the register in which the notice first appears, or, if applicable, on the date prescribed under s. 227.22 (4).
Note: Current law requires an agency to give notice of a public hearing on a proposed rule through the Wisconsin administrative register. Notice is considered to have been given on the first or 15th day of the month following publication of the register. If a notice were published on February 1, 2006, the statute could be interpreted to mean that the notice becomes effective on the following February 15, March 1, or March 15. In order to clarify the statutes and reduce possible delays, this Section provides that the notice generally will be considered to have been given on the effective date of the issue of the Wisconsin administrative register in which the notice first appears. Each issue of the register states its effective date.
249,18
Section
18. 227.17 (3) (d) of the statutes is amended to read:
227.17 (3) (d) An analysis of the proposed rule as required under s. 227.14 (2).
Note: Current law requires that an agency notice of a public hearing on a proposed rule must include an analysis of the proposed rule. This Section clarifies that the analysis must include all of the items required under s. 227.14 (2), stats. This analysis is the same analysis that accompanies a proposed rule when it is submitted to the legislative council staff for review under s. 227.15, stats.
249,19
Section
19
. 227.19 (2) of the statutes is amended to read:
227.19 (2) Notification of legislature. An agency shall submit a notice to the presiding officer chief clerk of each house of the legislature when a proposed rule is in final draft form. The notice shall be submitted in triplicate and shall be accompanied by a report in the form specified under sub. (3). A notice received under this subsection on or after September 1 of an even-numbered year shall be considered received on the first day of the next regular session of the legislature. Each The presiding officer of each house of the legislature shall, within 7 10 working days following the day on which the notice and report are received, direct the appropriate chief clerk to refer them to one committee, which may be either a standing committee or a joint legislative committee created by law, except the joint committee for review of administrative rules. The agency shall submit to the revisor for publication in the register a statement that a proposed rule has been submitted to the presiding officer chief clerk of each house of the legislature. Each
presiding officer chief clerk shall enter a similar statement in the journal of his or her house.
Note: Current law requires an agency to submit a notice to the presiding officer of each house of the legislature when a proposed rule is in final draft form. The presiding officer must, within 7 working days, refer the rule to a committee, which may be either a standing committee or a joint legislative committee created by law, except the joint committee for review of administrative rules. This Section requires that the agency submit the notice to the chief clerk of each house of the legislature for internal processing and that the referral as directed by the presiding officers must be accomplished within 10 working days. Notice to the chief clerks is in accord with the process for notifying the legislature of various actions under s. 13.172, stats. This Section also provides that referral of a proposed rule may be made only to a standing committee.
249,20
Section
20. 227.19 (3) (intro.) of the statutes is amended to read:
227.19 (3) Form of report. (intro.) The report required under sub. (2) shall be in writing and shall include the proposed rule in the form specified in s. 227.14 (1), the material specified in s. 227.14 (2) to (4), a copy of any economic impact report prepared by the agency under s. 227.137, a copy of any report prepared by the department of administration under s. 227.138, a copy of any energy impact report received from the public service commission under s. 227.117 (2), and a copy of any recommendations of the legislative council staff, and an analysis. The analysis report shall also include all of the following:
Note: This Section clarifies that an agency report to the legislature, rather than a rule analysis, must contain specified items.
249,21
Section
21. 227.19 (3) (g) of the statutes is created to read:
227.19 (3) (g) The report of the department of commerce, as required by s. 227.115, if a proposed rule directly or substantially affects the development, construction, cost, or availability of housing in this state.
Note: Current law requires the department of commerce to prepare a report on a proposed rule if the proposed rule directly or substantially affects the development, construction, cost, or availability of housing in Wisconsin. This Section requires that the report be included in the submission of a proposed rule to the legislature.
249,22
Section
22. 227.19 (3) (h) of the statutes is created to read:
227.19 (3) (h) A response to any report prepared by the small business regulatory review board under s. 227.14 (2g).
Note: Current law provides that the small business regulatory review board, when reviewing a proposed rule that may have a significant economic impact on small businesses, must notify the agency if it determines that the proposed rule does not include an enforcement provision or that the agency failed to comply with certain statutory requirements. In addition, the small business regulatory review board may submit suggested changes in the proposed rule to the agency. This Section requires that when an agency submits a proposed rule to the legislature for review, it must include its response to a report prepared by the small business regulatory review board.
249,23
Section
23
. 227.19 (4) (b) 1. (intro.) of the statutes is amended to read:
