Amendment SSA1-AB486

SENATE SUBSTITUTE AMENDMENT 1, TO 2003 ASSEMBLY BILL 486

October 20, 2003 - Offered by Joint Committee on Finance.

AB486-SSA1,2,2 An Act to amend 84.063 (5), 84.30 (14), 86.196 (2) (c), 115.28 (7) (a), 196.195 (10), 218.0114 (13) (b), 218.11 (2) (b) 1., 218.12 (2) (b) 2., 218.22 (2) (b) 1., 218.32 (2) (b) 1., 218.41 (2m) (a) 1., 218.51 (3) (b) 1., 341.19 (4), 343.02 (1), 343.305 (6) (a), 343.305 (11), 440.06, 452.10 (2) (b), 563.15 (1), 601.04 (3), 632.68 (2) (b) (intro.), 632.68 (4) (b), 633.14 (1) (intro.) and 633.14 (2) (intro.); to repeal and recreate 118.19 (2), 299.05 and 440.03 (1m); and to create 5.059, 13.92 (1) (b) 2m., 16.07, 16.9786, 29.026, 46.284 (3m), 48.66 (2r), 49.481, 50.02 (4m), 51.031, 73.303, 85.16 (3), 93.125, 93.13, 101.022, 101.023, 103.275 (2m), 103.91 (2m), 103.92 (2m), 104.07 (4m), 105.06 (1r), 125.04 (3m), 145.025, 146.525, 168.165, 196.195 (5m), 224.50, 224.60, 250.043, 299.06, 562.05 (12), 563.15 (4), 563.92 (5), 601.58 and 628.093 of the statutes; relating to: periods in which state agencies will act on certain applications, petitions, and motions, approval of certain applications, petitions, and motions, refunds of fees, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Deadlines for agency action

This substitute amendment requires state agencies to promulgate rules establishing periods within which the agencies intend to approve or disapprove applications for specified licenses, permits, and other approvals that the agencies issue. The following state agencies are required to promulgate rules: the Department of Natural Resources (DNR); the Department of Agriculture, Trade and Consumer Protection (DATCP); the Department of Regulation and Licensing (DRL); the Department of Health and Family Services (DHFS); the Department of Commerce; the Department of Workforce Development (DWD); the Department of Public Instruction (DPI); the Department of Financial Institutions (DFI); the Department of Transportation (DOT); the Department of Administration (DOA); the Department of Revenue (DOR); the Office of the Commissioner of Insurance (OCI); and the Elections Board.

Automatic approval upon failure to meet deadlines

Under this substitute amendment, there are two possible consequences of failure to act on an application within the period established by rule. For some kinds of approvals, if an agency fails to act within the period established by rule or before the end of an authorized extension of that period, the application is automatically approved. An agency may extend the period for these approvals on the grounds that an application was incomplete if the agency provides written notice to the applicant, within 15 days of receiving the application, describing the information that must be provided to complete the application. An agency may extend the period by not more than 30 days if it finds that there is a substantial likelihood that the activity proposed to be conducted under the application would result in substantial harm to human health or human safety and that the agency cannot adequately review the application within the period. The substitute amendment also authorizes agencies to promulgate rules providing for extensions of the period for acting on an application because the applicant makes a material modification to the application or because information that the agency needs to complete its review of an application is unavailable.

A license or permit that is automatically approved is subject to any terms or conditions specified by statute or rule for that kind of license or permit and the agency may suspend or revoke it for failure to comply with those terms or conditions.

Approvals for which failure to act by a deadline results in automatic approval include: high-capacity well approvals, water pollution permits, solid or hazardous waste facility operating licenses, and permits and other determinations related to structures and deposits in navigable waters issued by DNR; nursery dealer, pesticide manufacturer, commercial feed manufacturer, food processing plant, and grain dealer licenses, and farm-raised deer registrations issued by DATCP; approvals of construction site erosion control plans, approvals of exemptions from requirements related to the retention and disclosure of information about toxic substances, and approvals of agencies that inspect manufactured homes issued by the Department of Commerce; and approvals of plans for mergers by certain business entities and approvals relating to the operations of state banks, savings banks and savings and loans, and credit unions issued by DFI.

Fee refunds upon failure to meet deadlines

For the kinds of approvals that are not subject to automatic approval under the substitute amendment, an agency must refund fees paid by an applicant for an approval if the agency fails to act within the period established by rule. Also, an applicant may choose to treat the application as though it had been denied and obtain administrative and, if necessary, judicial review of the denial. An agency may extend the period for these approvals on the grounds that an application was incomplete if the agency provides written notice to the applicant within 15 days of receiving the application describing the information that must be provided to complete the application.

Approvals for which the consequence of failure to act on an application within the period established by rule is a refund of fees include: well driller registrations, bait dealer licenses, and commercial fishing licenses issued by DNR; milk producer, buttermaker, and cheesemaker licenses issued by DATCP; all of the occupational credentials issued by DRL and its examining boards and affiliated credentialing boards; licenses for day care centers, group homes, nursing homes, ambulance service providers, and emergency medical technicians, certifications for mental health facilities, and permits for hotels and restaurants issued by DHFS; electrician certifications, plumber licenses, and building plan approvals issued by the Department of Commerce; migrant labor camp and contractor certifications and sheltered workshop and employment agent licenses issued by DWD; teaching licenses issued by DPI; mortgage banker and investment advisor licenses issued by DFI; outdoor advertising permits, motor vehicle dealer licenses, and oversize and overweight vehicle permits issued by DOT; racetrack and bingo licenses issued by DOA; approvals of subcontractors for state building contracts and of state construction contracts by DOA; permits related to the sale of cigarettes, tobacco products, and alcohol beverages issued by DOR; certificates of authority to transact the business of insurance and benefit plan administrator licenses issued by OCI; and approvals of ballots and voting devices by the Elections Board.

Partial deregulation of telecommunications services

Under current law, a person may petition the Public Service Commission (PSC) to begin proceedings for determining whether to partially deregulate certain telecommunications services. The petition must specify the provisions of law that the person requests the PSC to suspend that will result in partial deregulation. The PSC may also begin such proceedings on its own motion that specifies the provisions of law that may be suspended. If the PSC makes certain findings regarding competition for such telecommunications services, the PSC may issue an order suspending the provisions of law specified in the petition or the PSC's motion. Current law does not impose any deadlines on such proceedings.

The substitute amendment requires the PSC to promulgate rules establishing a deadline for completing such proceedings. The PSC must inform a person who files a petition about the deadline. In addition, the PSC may extend the deadline if the petition is not complete and if, within 30 days after receiving the petition, the PSC provides written notice to the petitioner that specifically describes the information necessary to complete the petition. Also, if the PSC begins proceedings on its own motion, the PSC must inform interested persons about the deadline. If the PSC fails to complete the proceedings and, if appropriate, issue an order within the deadline, the substitute amendment provides for the suspension of any provisions of law that are specified in the petition or in the PSC's motion.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB486-SSA1, s. 1 Section 1. 5.059 of the statutes is created to read:

AB486-SSA1,4,4 5.059 Deadlines for action on certain applications. (1) Deadlines. The board, by rule, shall establish periods within which the board intends to approve or disapprove an application for any of the following:

AB486-SSA1,4,5 (a) Approval of ballots, devices, and voting equipment under s. 5.91.

AB486-SSA1,4,6 (b) Certification of chief inspectors under s. 7.31.

AB486-SSA1,4,12 (2) Failure to meet deadline. (a) Subject to sub. (4), the board shall refund fees paid by the applicant for an approval specified in sub. (1) if the board fails to provide the applicant with written notice, which may be by electronic mail, that the board has approved or disapproved the application for the approval, including the specific facts upon which any disapproval is based, before the expiration of the period established under sub. (1) for the approval.

AB486-SSA1,5,2 (am) Subject to sub. (4), if the board fails to provide the applicant for an approval specified in sub. (1) with written notice, which may be by electronic mail, that the board has approved or disapproved the application before the expiration of the period established under sub. (1) for the approval, the applicant may choose to proceed under ch. 227 as though the board had disapproved the application by providing the board with written notice of that choice no later than 45 days after the expiration of the period established under sub. (1).

AB486-SSA1,5,5 (b) The board may not disapprove an application for an approval solely because the board is unable to complete its review of the application within the period established under sub. (1).

AB486-SSA1,5,10 (3) Notice of deadline. In the rules under sub. (1), the board shall specify a method for informing applicants of the period established under sub. (1). The board shall specify the method that it determines is the most cost-effective method available. The board is not required to notify an applicant if the board intends to approve or disapprove the application within 14 days after receiving the application.

AB486-SSA1,5,13 (4) Permitted extension of deadline. The board may extend the period established under sub. (1) because an application is incomplete if all of the following apply:

AB486-SSA1,5,16 (a) Within 15 days after receiving the application, the board provides written notice, which may be by electronic mail, to the applicant describing specifically the information that must be provided to complete the application.

AB486-SSA1,5,18 (b) The information under par. (a) is directly related to eligibility for the approval or to terms or conditions of the approval.

AB486-SSA1,5,20 (c) The information under par. (a) is necessary to determine whether to approve the application or is necessary to determine the terms or conditions of the license.

AB486-SSA1,5,23 (d) The extension is not longer than the number of days from the day on which the board provides the notice under par. (a) to the day on which the board receives the information.

AB486-SSA1, s. 2 Section 2. 13.92 (1) (b) 2m. of the statutes is created to read:

AB486-SSA1,6,3 13.92 (1) (b) 2m. Determine whether an original measure requires a person to obtain a license, permit, or similar approval from a state agency and, if so, include a statement to that effect in the analysis of the measure.

AB486-SSA1, s. 3 Section 3. 16.07 of the statutes is created to read:

AB486-SSA1,6,7 16.07 Deadlines for actions on certain applications. (1) Deadlines. The department, by rule, shall establish periods within which the department intends to approve or disapprove an application for any of the following:

AB486-SSA1,6,9 (a) Approval of subcontractors for state building projects under s. 16.855 (13) (b).

AB486-SSA1,6,10 (b) Approval of state construction contracts under s. 16.87 (3).

AB486-SSA1,6,16 (2) Failure to meet deadline. (a) Subject to sub. (4), the department shall refund fees paid by the applicant for an approval specified in sub. (1) if the department fails to provide the applicant with written notice, which may be by electronic mail, that the department has approved or disapproved the application, including the specific facts upon which any disapproval is based, before the expiration of the period established under sub. (1) for the approval.

AB486-SSA1,6,23 (am) Subject to sub. (4), if the department fails to provide the applicant for an approval specified in sub. (1) with written notice, which may be by electronic mail, that the department has approved or disapproved the application before the expiration of the period established under sub. (1) for the approval, the applicant may choose to proceed under ch. 227 as though the department had disapproved the application by providing the department with written notice of that choice no later than 45 days after the expiration of the period established under sub. (1).

AB486-SSA1,7,3 (b) The department may not disapprove an application for an approval solely because the department is unable to complete its review of the application within the period established under sub. (1).

AB486-SSA1,7,9 (3) Notice of deadline. In the rules under sub. (1), the department shall specify a method for informing applicants of the periods established under sub. (1). The department shall specify the method that it determines is the most cost-effective method available. The department is not required to notify an applicant if the department intends to approve or disapprove the application within 14 days after receiving the application.

AB486-SSA1,7,12 (4) Permitted extension of deadline. The department may extend the period established under sub. (1) because an application is incomplete if all of the following apply:

AB486-SSA1,7,15 (a) Within 15 days after receiving the application, the department provides written notice, which may be by electronic mail, to the applicant describing specifically the information that must be provided to complete the application.

AB486-SSA1,7,17 (b) The information under par. (a) is directly related to eligibility for the approval or to terms or conditions of the approval.

AB486-SSA1,7,19 (c) The information under par. (a) is necessary to determine whether to approve the application or is necessary to determine the terms or conditions of the approval.

AB486-SSA1,7,22 (d) The extension is not longer than the number of days from the day on which the department provides the notice under par. (a) to the day on which the department receives the information.

AB486-SSA1, s. 4 Section 4. 16.9786 of the statutes is created to read:

AB486-SSA1,8,3 16.9786 Automatic approval of certain applications. (1) Deadlines. The department, by rule, shall establish periods within which the department intends to approve or disapprove an application for any of the following:

AB486-SSA1,8,4 (a) Licensing of computer programs under s. 16.971 (4) (a).

AB486-SSA1,8,5 (b) Proposed purchasing contracts under s. 16.974 (5).

AB486-SSA1,8,6 (c) Proposed strategic plans of executive branch agencies under s. 16.976 (5).

AB486-SSA1,8,20 (2) Failure to meet deadline. (a) Subject to subs. (4) (c) and (d) and (5), failure by the department to provide the applicant for an approval specified in sub. (1) with written notice, which may be by electronic mail, that the department has approved or disapproved the application, including the specific facts upon which any disapproval is based, before the expiration of the period established under sub. (1) for the approval, constitutes approval of the application. An application approved under this paragraph is subject to any terms or conditions specified by statute or rule for the approval and the department may suspend, limit, revoke, or withdraw the approval for substantial failure to comply with those terms or conditions. The department may not make the approval subject to any term or condition that is not specified by statute or rule. Within 30 days after the expiration of the period established under sub. (1) for the approval, the department shall provide the applicant with a statement showing that the application is approved and specifying any terms and conditions that apply to that approval.

AB486-SSA1,8,23 (b) The department may not disapprove an application for an approval solely because the department is unable to complete its review of the application within the period established under sub. (1).

AB486-SSA1,9,4 (3) Notice of deadline. In the rules under sub. (1), the department shall specify a method for informing applicants of the periods established under sub. (1). The department shall specify the method that it determines is the most cost-effective method available. The department is not required to notify an applicant if the department intends to approve or disapprove the application within 14 days after receiving the application.

AB486-SSA1,9,6 (4) Optional provisions of rules. The department may include any of the following in the rules required under sub. (1):

AB486-SSA1,9,8 (a) Methods for determining the commencement of the period established under sub. (1) and for determining when the application for an approval is complete.

AB486-SSA1,9,11 (b) A longer period under sub. (1) for an application for an approval for which an environmental impact statement is required under s. 1.11 than for other applications.

AB486-SSA1,9,15 (c) Extensions of the period established under sub. (1) because the applicant makes a material modification to the application if the department notifies the applicant in writing of the extension within 30 days after the applicant makes the modification. The notification may be by electronic mail.

AB486-SSA1,9,21 (d) Extensions of the period established under sub. (1) because information needed by the department to complete its review of an application for an approval is unknown or cannot be determined with certainty when the department receives the application if the department notifies the applicant in writing of the need for an extension within 30 days after the applicant submits the application. The notification may be by electronic mail.

AB486-SSA1,9,23 (e) Deadlines for the department to complete intermediate steps in the process of completing its review of an application.

AB486-SSA1,10,3 (5) Extensions authorized. (a) During the period established under sub. (1), the department and the applicant may jointly agree to a different period for acting on an application than that specified under sub. (1).

AB486-SSA1,10,5 (b) The department may extend the period established under sub. (1) because an application is incomplete if all of the following apply:

AB486-SSA1,10,8 1. Within 15 days after receiving the application, the department provides written notice, which may be by electronic mail, to the applicant describing specifically the information that must be provided to complete the application.

AB486-SSA1,10,10 2. The information under subd. 1. is directly related to eligibility for the approval or to terms or conditions of the approval.

AB486-SSA1,10,12 3. The information under subd. 1. is necessary to determine whether to approve the application or is necessary to determine the terms or conditions of the approval.

AB486-SSA1,10,15 4. The extension is not longer than the number of days from the day on which the department provides the notice under subd. 1. to the day on which the department receives the information.

AB486-SSA1,10,23 (d) The department may extend the period established under sub. (1) for an application by not more than 30 days if, within the period established under sub. (1), the department finds that there is a substantial likelihood that the activity proposed to be conducted under the application would result in substantial harm to human health or human safety and that the department cannot adequately review the application within the period established under sub. (1) and provides written notice, which may be by electronic mail, to the applicant that states with particularity the facts on which those findings are based.

AB486-SSA1, s. 5 Section 5. 29.026 of the statutes is created to read:

AB486-SSA1,11,4 29.026 Deadlines for action on certain approval applications. (1) Deadlines. The department, by rule, shall establish periods within which the department intends to approve or disapprove an application for any of the approvals specified in s. 29.024 (2r) 1. to 16.

AB486-SSA1,11,10 (2) Failure to meet deadline. (a) Subject to sub. (4), the department shall refund fees paid by the applicant for an approval subject to sub. (1) if the department fails to provide the applicant with written notice, which may be by electronic mail, that the department has approved or disapproved the application for the approval, including the specific facts upon which any disapproval is based, before the expiration of the period established under sub. (1) for the approval.

AB486-SSA1,11,17 (am) Subject to sub. (4), if the department fails to provide the applicant for an approval subject to sub. (1) with written notice, which may be by electronic mail, that the department has approved or disapproved the application before the expiration of the period established under sub. (1) for the approval, the applicant may choose to proceed under ch. 227 as though the department had disapproved the application by providing the department with written notice of that choice no later than 45 days after the expiration of the period established under sub. (1).

AB486-SSA1,11,20 (b) The department may not disapprove an application for an approval solely because the department is unable to complete its review of the application within the period established under sub. (1).

AB486-SSA1,12,2 (3) Notice of deadline. In the rules under sub. (1), the department shall specify a method for informing applicants of the periods established under sub. (1). The department shall specify the method that it determines is the most cost-effective method available. The department is not required to notify an applicant if the department intends to approve or disapprove the application within 14 days after receiving the application.

AB486-SSA1,12,5 (4) Permitted extension of deadline. The department may extend the period established under sub. (1) because an application is incomplete if all of the following apply:

AB486-SSA1,12,8 (a) Within 15 days after receiving the application, the department provides written notice, which may be by electronic mail, to the applicant describing specifically the information that must be provided to complete the application.

AB486-SSA1,12,10 (b) The information under par. (a) is directly related to eligibility for the approval or to terms or conditions of the approval.

AB486-SSA1,12,12 (c) The information under par. (a) is necessary to determine whether to approve the application or is necessary to determine the terms or conditions of the approval.

AB486-SSA1,12,15 (d) The extension is not longer than the number of days from the day on which the department provides the notice under par. (a) to the day on which the department receives the information.

AB486-SSA1, s. 6 Section 6. 46.284 (3m) of the statutes is created to read:

AB486-SSA1,12,19 46.284 (3m) Deadline for action on certification application. (a) Deadline. The department, by rule, shall establish a period within which the department intends to approve or disapprove an application for certification under sub. (3).

AB486-SSA1,12,25 (b) Failure to meet deadline. 1. Subject to par. (d), the department shall refund fees paid by the application for certification specified in par. (a) if the department fails to provide the applicant with written notice, which may be by electronic mail, that the department has approved or disapproved the application for the certification, including the specific facts upon which any disapproval is based, before the expiration of the period established under par. (a) for the certification.

AB486-SSA1,13,7 1m. Subject to par. (d), if the department fails to provide the applicant for a certification specified in par. (a) with written notice, which may be by electronic mail, that the department has approved or disapproved the application before the expiration of the period established under par. (a) for the certification, the applicant may choose to proceed under ch. 227 as though the department had disapproved the application by providing the department with written notice of that choice no later than 45 days after the expiration of the period established under par. (a).

AB486-SSA1,13,10 2. The department may not disapprove an application for certification solely because the department is unable to complete its review of the application within the period established under par. (a).

AB486-SSA1,13,16 (c) Notice of deadline. In the rules under par. (a), the department shall specify a method for informing applicants of the period established under par. (a). The department shall specify the method that it determines is the most cost-effective method available. The department is not required to notify an applicant if the department intends to approve or disapprove the application within 14 days after receiving the application.