SB150: Bill Text

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2005 - 2006 LEGISLATURE

2005 Senate BILL 150

March 30, 2005 - Introduced by Joint Legislative Council. Referred to Committee on Veterans, Homeland Security, Military Affairs, Small Business and Government Reform.

SB150,2,2 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), 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), 227.24 (3m) (intro.), 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.

Analysis by the Legislative Reference Bureau

For further information, see the Notes provided by the Law Revision Committee of the Joint Legislative Council.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

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.

SB150, s. 1 Section 1. 227.114 (5) of the statutes is amended to read:

SB150,2,6 227.114 (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.

SB150, s. 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.

SB150, s. 3 Section 3. 227.115 (2) of the statutes is amended to read:

SB150,3,8 227.115 (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.

SB150, s. 4 Section 4. 227.116 (4) (intro.) and (5) of the statutes are amended to read:

SB150,3,14 227.116 (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:

SB150,3,18 (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.

SB150, s. 5 Section 5. 227.135 (1) (e) of the statutes is amended to read:

SB150,4,2 227.135 (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.

SB150, s. 6 Section 6. 227.135 (2) and (3) of the statutes are amended to read:

SB150,4,15 227.135 (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.

SB150,4,22 (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.

SB150, s. 7 Section 7 . 227.137 (2) (intro.) of the statutes is amended to read:

SB150,5,19 227.137 (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.

SB150, s. 8 Section 8 . 227.138 (2) (intro.) of the statutes is amended to read:

SB150,6,7 227.138 (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.

SB150, s. 9 Section 9. 227.14 (2) (a) (intro.) of the statutes is amended to read:

SB150,6,12 227.14 (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.

SB150, s. 10 Section 10. 227.14 (2) (a) 4. of the statutes is amended to read:

SB150,7,3 227.14 (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.

SB150, s. 11 Section 11. 227.14 (2) (a) 7. and 8. of the statutes are created to read:

SB150,7,6 227.14 (2) (a) 7. The electronic mail address and telephone number of an agency contact person for the proposed rule.

SB150,7,9 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.

SB150, s. 12 Section 12. 227.14 (2g) (intro.) of the statutes is amended to read: