LRB-2179/1
RPN:lmk:pg
2005 - 2006 LEGISLATURE
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
1An Act to repeal 227.114 (7);
to amend 227.114 (5), 227.115 (2), 227.116 (4)
2(intro.) and (5), 227.135 (1) (e), 227.135 (2) and (3), 227.137 (2) (intro.), 227.138
3(2) (intro.), 227.14 (2) (a) (intro.), 227.14 (2) (a) 4., 227.14 (2g) (intro.), 227.14
4(2m), 227.14 (4m), 227.15 (1m) (intro.), 227.17 (2), 227.17 (3) (d), 227.19 (2),
5227.19 (3) (intro.), 227.19 (4) (b) 1. (intro.), 227.19 (4) (b) 2., 227.19 (4) (b) 6.,
6227.19 (4) (c), 227.19 (5) (a), 227.19 (5) (b) 1. (intro.), 227.19 (5) (b) 2., 227.19 (5)
7(b) 4., 227.19 (5) (e), 227.19 (5) (g) (intro.), 227.19 (6) (b), 227.20 (1), (2), and (3)
8(intro.), 227.21 (2) (b), 227.22 (2) (e), 227.24 (2) (am), 227.24 (2) (c), 227.24 (3m)
9(intro.), 227.25 (3), 227.26 (2) (f), 227.26 (2) (h), 227.26 (2) (j), 227.27 (2), 227.30
10(1), 227.30 (3), 227.40 (2) (f) and 601.41 (3) (b); and
to create 227.14 (2) (a) 7.
11and 8., 227.14 (6) (d), 227.19 (3) (g), 227.19 (3) (h), 227.19 (4) (b) 3m. and 227.26
1(2) (L) of the statutes;
relating to: making technical and minor substantive
2changes 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
3Section
1. 227.114 (5) of the statutes is amended to read:
SB150,2,64
227.114
(5) Prior to the notice required under s. 227.17 (1) (a), the agency shall
5notify the secretary of commerce
and the small business ombudsman clearinghouse 6that 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
7Section
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
8Section
3. 227.115 (2) of the statutes is amended to read:
SB150,3,8
1227.115
(2) Report on rules affecting housing. If a proposed rule directly or
2substantially affects the development, construction, cost
, or availability of housing
3in this state, the department
, through the division of housing, shall prepare a report
4on the proposed rule before it is submitted to the legislative council staff under s.
5227.15. The department may request any information from other state agencies,
6local governments or individuals or organizations that is reasonably necessary for
7the department to prepare the report. The department shall prepare the report
8within 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
9Section
4. 227.116 (4) (intro.) and (5) of the statutes are amended to read:
SB150,3,1410
227.116
(4) (intro.) If an agency fails to review and make a determination on
11a permit application within the time period specified in a rule or law, for each such
12failure the agency shall prepare a report and submit it to the
business development
13assistance center department of commerce within 5 business days of the last day of
14the time period specified, setting forth all of the following:
SB150,3,18
15(5) If an agency fails to review and make a determination on a permit
16application within the time period specified in a rule or law, upon completion of the
17review and determination for that application, the agency shall notify the
business
18development 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
19Section
5. 227.135 (1) (e) of the statutes is amended to read:
SB150,4,2
1227.135
(1) (e) A description of all of the entities that
will may be affected by
2the 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
3Section
6. 227.135 (2) and (3) of the statutes are amended to read:
SB150,4,154
227.135
(2) Until the individual or body with policy-making powers over the
5subject matter of a proposed rule approves a statement of the scope of the proposed
6rule, a state employee or official may not perform any activity in connection with
7drafting the proposed rule except for an activity necessary to prepare the statement
8of the scope of the proposed rule.
The individual or body with policy-making powers
9may not approve a statement until at least 10 days after publication of the statement
10in the register as required under sub. (3). If the individual or body with
11policy-making powers
over the subject matter of a proposed rule does not disapprove
12the statement
of the scope of the proposed rule within 30 days after the statement
13is presented to the individual or body,
or by the 11th day after publication of the
14statement in the register, whichever is later, the statement is considered to be
15approved.
SB150,4,22
16(3) The agency shall send the statement of the scope of a proposed rule to the
17revisor for publication in the register. On the same day that the agency sends the
18statement to the revisor, the agency shall send a copy of the statement to the
19secretary of administration.
The individual or body with policy-making powers over
20the subject matter of a proposed rule may not take action on a statement of the scope
21of the proposed rule until at least 10 days after publication of the statement in the
22register.
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
1Section
7
. 227.137 (2) (intro.) of the statutes is amended to read:
SB150,5,192
227.137
(2) (intro.) After an agency publishes a statement of the scope of a
3proposed rule under s. 227.135, and before the agency submits the proposed rule to
4the
legislative council for review under s. 227.15
legislature for review under s.
5227.19 (2), a municipality, an association that represents a farm, labor, business, or
6professional group, or 5 or more persons that would be directly and uniquely affected
7by the proposed rule may submit a petition to the department of administration
8asking that the secretary of administration direct the agency to prepare an economic
9impact report for the proposed rule. The agency shall prepare an economic impact
10report before submitting the proposed rule to the
legislative council staff under s.
11227.15 legislature for review under s. 227.19 (2) if the secretary of administration
12directs the agency to prepare that report. The secretary of administration may direct
13the agency to prepare an economic impact report for the proposed rule before
14submitting the proposed rule to the
legislative council staff under s. 227.15 15legislature for review under s. 227.19 (2). The secretary of administration shall
16direct the agency to prepare an economic impact report for the proposed rule before
17submitting the proposed rule to the
legislative council staff under s. 227.15 18legislature for review under s. 227.19 (2) if the secretary determines that all of the
19following 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
1Section
8
. 227.138 (2) (intro.) of the statutes is amended to read:
SB150,6,72
227.138
(2) (intro.) If an economic impact report will be prepared under s.
3227.137 (2) regarding a proposed rule, the department shall review the proposed rule
4and issue a report. The agency shall not submit a proposed rule to the
legislative
5council staff for review under s. 227.15 (1) legislature for review under s. 227.19 (2) 6until the agency receives a copy of the department's report and the approval of the
7secretary of administration. The report shall include all of the following findings:
Note: See Note to Section 7.
SB150, s. 9
8Section
9. 227.14 (2) (a) (intro.) of the statutes is amended to read:
SB150,6,129
227.14
(2) (a) (intro.) An agency shall prepare in plain language an analysis
10of each proposed rule, which shall be printed
with the
as a preface to the text of the 11proposed rule when it is published or distributed. The analysis shall include all of
12the 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
1Section
10. 227.14 (2) (a) 4. of the statutes is amended to read:
SB150,7,32
227.14
(2) (a) 4. A comparison
of
with similar rules in
adjacent states Illinois,
3Iowa, 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
4Section
11. 227.14 (2) (a) 7. and 8. of the statutes are created to read:
SB150,7,65
227.14
(2) (a) 7. The electronic mail address and telephone number of an agency
6contact person for the proposed rule.
SB150,7,97
8. The place where comments on the proposed rule should be submitted and the
8deadline for submitting those comments, if the deadline is known at the time the
9proposed 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
10Section
12. 227.14 (2g) (intro.) of the statutes is amended to read:
SB150,8,1511
227.14
(2g) (title)
Fiscal effect of rule Review by the small business
12regulatory review board. On the same day that an agency
publishes a proposed rule
13under this section submits to the legislative council staff under s. 227.15 a proposed
14rule that may have a significant economic impact on small businesses, the agency
15shall submit the proposed rule
and, the analysis required under sub. (2)
, and a
1description of its actions taken to comply with s. 227.114 (2) and (3) to the small
2business regulatory review board. The board may use cost-benefit analysis to
3determine the fiscal effect of the rule on small businesses and shall determine
4whether the agency has complied with subs. (2) and (2m) and s. 227.114 (2) and (3).
5Except as provided in subs. (1m) and (1s), each proposed rule shall include provisions
6detailing how the rule will be enforced. If the board determines that the rule does
7not include an enforcement provision or that the agency failed to comply with sub.
8(2) or (2m) or s. 227.114 (2) or (3), the board shall notify the agency of that
9determination and ask the agency to comply with any of those requirements. In
10addition, the board may submit suggested changes in the proposed rule to the agency,
11including proposals to reduce the use of cross-references in the rule. The board shall
12send a report of those suggestions and of any notice of failure to include enforcement
13provisions or to comply with sub. (2) or (2m) or s. 227.114 (2) or (3) to the legislative
14council staff. The notification to the agency may include a request that the agency
15do 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.
SB150, s. 13
16Section
13. 227.14 (2m) of the statutes is amended to read:
SB150,9,417
227.14
(2m) Quality of agency data
and limitation of cross-references. 18Each agency shall, in cooperation with the department of administration, ensure the
19accuracy, integrity, objectivity, and consistency of the data that is used when
1preparing a proposed rule and when completing an analysis of the proposed rule
2under sub. (2). Each agency shall
reduce limit the amount of cross-references to the
3statutes in proposed and final rules. A person affected by a proposed rule may submit
4comments to the agency regarding the accuracy, integrity, or consistency of that data.
Note: This Section amends the title to s. 227.14 (2m), stats., to more accurately
reflect its content. In addition, this Section requires agencies to limit their use of
statutory cross-references in rules rather than reduce those references since it is not
clear in current law what the reduction is from.
SB150, s. 14
5Section
14. 227.14 (4m) of the statutes is amended to read:
SB150,9,186
227.14
(4m) Notice of submittal to
joint legislative council staff. On the
7same day that an agency submits a proposed rule to the
joint legislative council staff
8under s. 227.15, the agency shall prepare a written notice of the agency's submittal
9to the
joint legislative council staff. The notice shall include a statement of the date
10on which the proposed rule has been submitted to the
joint legislative council staff
11for review, of the subject matter of the proposed rule and of whether a public hearing
12on the proposed rule is required, and shall identify the organizational unit within the
13agency that is primarily responsible for the promulgation of the rule. The notice
14shall be approved by the individual or body with policy-making powers over the
15subject matter of the proposed rule. The agency shall send the notice to the revisor
16for publication in the register. On the same day that the agency sends the notice to
17the revisor, the agency shall send a copy of the notice to the secretary of
18administration.
Note: This Section make references to the legislative council staff consistent with
references in the rest of ch. 227, stats.
SB150, s. 15
19Section
15. 227.14 (6) (d) of the statutes is created to read:
SB150,9,2120
227.14
(6) (d) If a proposed rule is withdrawn, the proposed rule may be
21promulgated only by commencing the rule-making procedure again with the
1preparation, under s. 227.135, of a statement of the scope of the proposed rule that
2the 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.
SB150, s. 16
3Section
16. 227.15 (1m) (intro.) of the statutes is amended to read:
SB150,10,124
227.15
(1m) Internet access to proposed rule. (intro.) The
joint legislative
5council
staff shall create and maintain an Internet site that includes a copy of
or link
6to each proposed rule received under sub. (1) in a format that allows
the site to be
7searched searching using keywords. Each agency shall provide the
joint legislative
8council
staff with the proposed rules and other information needed to comply with
9this subsection in the format required by the
joint legislative council
staff. The
10Internet site shall
include a section devoted to
identify or provide a link to a site that
11identifies proposed rules affecting small businesses, as defined in s. 227.114 (1). The
12Internet site shall also include
or provide a link to all of the following: