Wisconsin Legislature: CR 22-048 Rule Text

Amend ss. Trans 1.015 (4m) and (5), 1.02 (2) (b), (c), and (3), 1.03 (1), (2) (c), and (d), 1.035 (1) (a), 1.04, 1.05 (3), 2.10 (1) (a) 6. and (b) 6., 3.03 (2) (a), 4.02 (8), 6.02 (2), 57.03, 57.07, 58.06 (3) (g), 100.05 (3) (intro.), 100.15 (3) (a), 100.18 (2) (b), 101.07 (3) (Note), 102.15 (3) (a) 2., 15. (intro.), (c) (Note), (5) (d), (5m) (b) 1., 3g. h., and (6m) (e), 104.03 (5) (h), 104.09 (3m), 105.04 (3) (b), 105.04 (4), 105.07 (1) (c), 107.08 (1) (g), 112.155 (1), 115.05 (4), 130 (title), 130.03 (1) (h) and (i) 2., 131.02 (19), 134.05 (4), 137.03 (4) (b), 138.025 (2) (h), 138.03 (2), 138.03 (2), 138.09 (1) (a), (b), (c), (2) (b), (d) 2., (3) (b) 2., and (4) (b), 140.07 (1) (Note), 140.20 (7), 140.26 (5) (b), 144.03 (2) (b) (intro.) and 2. (Note), 149.02 (5), 149.04 (5) (g), 152.02 (22), 196.02 (6) (e), 200 (title), 200.01, 200.07 (title) and (1), 205.04 (1), 212.11 (3) (a), 231.02 (1), 254.13, 256.13, 262.11, 277.02 (6), 277.04 (2), 277.07 (2), 300.02 (1) and (8), 300.16 (2), (4), and (6) (c), 300.79, 301.05 (8), 301.09, 301.60 (1), 301.62 (11), 301.63 (2), 301.96 (3) (a) and (c), 309.01 (3) (a), 309.03 (4), 311.11 (2), 313.14 (1), 327.03 (2) (a) 2. and (b), 327.14 (3) (a) (intro.), (6) (a) 1., (7) (a), and (8) (a) 1., 330.04 (3), 403.05, 510.03 (1), 510.08 (1) (intro.), 512.02 (5) (i), and 512.06 (1), relating to inclusive language in administrative rules.

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The Statement of Scope for this Permanent Rule, SS 018-22, was approved by the Governor on February 24, 2022, published in Register No. 795A1 on March 7, 2022, and approved by Secretary of the State of Wisconsin Department of Transportation (Department) Craig Thompson, as required by s. 227.135 (2), Stats, on January 14, 2022. The analysis below was prepared by the Department.

ANALYSIS

Statutes Interpreted: Not applicable

Statutory Authority: ss. 227.11 (2) and 227.14 (1), Stats.

Explanation of Agency Authority: Section 227.11 (2), Stats., provides statutory rulemaking authority as follows:

(a) "Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute...”

(b) "Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules …"

Section 227.14 (1), Stats., requires rules to follow the form and style used by the Legislative Reference Bureau.

(1) “In preparing a proposed rule, an agency shall adhere substantially to the form and style used by the legislative reference bureau in the preparation of bill drafts and the form and style specified

in the manual prepared by the legislative council staff and the legislative reference bureau under s. 227.15 (7). To the greatest extent possible, an agency shall prepare proposed rules in plain language which can be easily understood.”

Executive Order #15, signed on March 12, 2019, states:

“Now, therefore, I, Tony Evers, Governor of the State of Wisconsin, by the authority vested in me by the Constitution and the Laws of the State, hereby order the following:

1. Direct each State Agency to review its administrative rules and replace any derogatory or offensive terminology with current, inclusive terminology. This includes, but is not limited to replacing:

a. ‘Mentally retarded’ with ‘intellectually disabled’;

b. ‘Mental retardation’ with ‘intellectual disability’; and

c. ‘Handicapped’ with ‘disabled.’

2. Direct each State Agency to complete its review and submit a scope statement to make such changes no later than 90 days from the date of this order.”

Related Statute or Rule: Not applicable.

Plain Language Analysis: Executive Order #15 provides for each state agency to review its administrative rules and replace any derogatory or offensive terminology with current inclusive terminology. This includes replacing "mentally retarded" with "intellectually disabled," "mental retardation" with "intellectual disability," and "handicapped" with "disabled."

The Legislative Reference Bureau Bill Drafting Manual directs agencies to avoid disfavored terminology such as “disabled person” and “person who suffers from a disability (or other condition),” unless to conform language to federal law. The Legislative Reference Bureau Bill Drafting Manual also directs agencies to consult The Chicago Manual of Style if a question of style, grammar, or usage is not answered in the drafting manual. The Chicago Manual of Style states that, in general, it is best to “emphasize the person, not a characteristic.”

This proposed rule is intended to accomplish only terminology changes in existing rules to eliminate outdated language and replace language that is derogatory or offensive with current, inclusive terminology. This rulemaking is intended to leave the scope and subjects of existing rules unchanged, resulting in no substantive effect on any entity.

The below rule replaces “disabled persons” with “individuals with disabilities;” “elders” with “seniors;” and “Indian” or “Native American” with “American Indian.”

According to the Legislative Reference Bureau Bill Drafting Manual, the preferred terminology when referring to American Indian tribes, bands, or individuals is “American Indian.” Previously, the Trans code referred to American Indian tribes, bands, or individuals as “American Indian,” “Indian,” or “Native American,” interchangeably. This rule amends all references to “Indian” and “Native American” to “American Indian” for consistency and accuracy.

This rule also amends many references to gender-specific language, such as “his or her,” “he or she,” and “him or her” and replaces these pronouns to the corresponding nouns. The Legislative Reference Bureau Bill Drafting Manual directs each agency, when drafting new rules and revisiting existing rules, to eliminate all terminology that is not sex-neutral and avoid the repetitious use of phrases of “he or she” and “his or her.” The rule changes reflect every instance in which replacing the pronoun with the corresponding noun would not create undue confusion.

Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The Department is unaware of any existing or proposed federal language that would affect terminology used in this state’s administrative code.

Comparison with Rules in Adjacent States:

Illinois:

Upon a review of Illinois’ transportation rules, Illinois uses the terms, “handicap,” “handicapped,” and “elderly” sporadically. See 92 Ill. Adm. Code 445 App. A and App. B, 92 Ill. Adm. Code 534.210, 92 Ill. Adm. Code 651.103 and 651.301, 92 Ill. Adm. Code 1001.410 and 1001.420, and 92 Ill. Adm. Code 1040.20 and 1040.80.

Iowa:

Upon review of Iowa’s transportation rules, Iowa uses the term, “elderly,” on a very limited basis and does not use the terms, “handicap,” “handicapped,” “mentally retarded,” nor “mental retardation.” See Iowa Admin. Code 761-910.4(324A) App. and Iowa Admin. Code 761-411.2(321L).

Michigan:

Upon review of Michigan’s transportation rules, Michigan uses the term, “elderly,” on a very limited basis and does not use the terms, “handicap,” “handicapped,” “mentally retarded,” nor “mental retardation.” See Mich. Admin. Code R 247.4102, 247.4201, and 247.4202.

Minnesota: