2017 - 2018 LEGISLATURE
May 12, 2017 - Introduced by Representatives Ballweg, Allen,
Brooks, Edming, Felzkowski, Gannon, Horlacher, Hutton, Katsma,
Kitchens, Kleefisch, Knodl, Kremer, Kuglitsch, Kulp, Loudenbeck,
Murphy, Mursau, Nerison, Neylon, Ott, Petryk, Quinn, Ripp, Rodriguez,
Rohrkaste, Skowronski, Snyder, Spiros, Steineke, Swearingen, Tauchen,
Thiesfeldt, Tittl, Vorpagel, Vos, Weatherston, Wichgers and Zimmerman,
cosponsored by Senators Nass, Darling and Kapenga. Referred to Committee
on State Affairs.
1An Act to amend
227.135 (2); and
13.92 (2) (jg), 35.93 (2) (b) 3. fm., 2
35.93 (2) (b) 3. gm., 227.138, 227.26 (4) and 227.29 of the statutes; relating to:
3review by state agencies of administrative rules and enactments; an expedited
4process for repealing rules an agency no longer has the authority to promulgate;
5retrospective economic impact analyses for rules; and reporting by the
6Legislative Reference Bureau on rules in need of revision.
Analysis by the Legislative Reference Bureau
Current law sets forth the procedure for promulgating administrative rules.
Generally, that procedure consists of the following steps:
1. The agency planning to promulgate the rule prepares a statement of the
scope of the proposed rule, which must be approved by the governor and the agency
head before any state employee or official may perform any activity in connection
with the drafting of the proposed rule.
2. The agency drafts the proposed rule, together with an economic impact
analysis, plain-language analysis, and fiscal estimate for the proposed rule, and
submits those materials to the Legislative Council Staff for review.
3. Subject to certain exceptions, a public hearing is held on the proposed rule.
4. The final draft of the proposed rule is submitted to the governor for approval.
5. The final draft of the proposed rule, together with the economic impact
analysis, plain-language analysis, and fiscal estimate for the proposed rule, are
submitted to the legislature for review by one standing committee in each house and
by the Joint Committee for Review of Administrative Rules (JCRAR).
6. The proposed rule is filed with the Legislative Reference Bureau (LRB) for
publication in the Wisconsin Administrative Register, and, subject to certain
exceptions, the rule becomes effective on the first day of the first month beginning
after publication of the revised chapters of the Wisconsin Administrative Code
Expedited procedure for repealing unauthorized rules
This bill provides for an alternate, expedited procedure an agency can use to
repeal a rule that the agency determines it no longer has the authority to promulgate
because of the repeal or amendment of the law that previously authorized its
promulgation (unauthorized rule). Under the bill, an agency, instead of using the
procedure described above, may promulgate a rule that repeals an unauthorized rule
using the following procedure:
1. The agency submits a petition with a proposed rule that repeals a rule the
agency has determined is an unauthorized rule to the Legislative Council Staff for
review, along with certain information and a statement that the agency is petitioning
JCRAR to use the expedited procedure to repeal a rule the agency has determined
to be an unauthorized rule.
2. The Legislative Council Staff reviews the petition and proposed rule and
submits to JCRAR the petition and proposed rule with a written report that includes
a statement of the Legislative Council Staff's determination of whether the proposed
rule proposes to repeal an unauthorized rule.
3. Following receipt of the petition and proposed rule submitted by the
Legislative Council Staff, JCRAR reviews the petition and proposed rule and may 1)
approve the agency's petition if JCRAR determines that the proposed rule would
repeal an unauthorized rule; 2) deny the petition; or 3) request that the agency make
changes to the proposed rule and resubmit the petition and proposed rule as
If JCRAR approves the petition, the agency must promulgate the proposed rule
to repeal the unauthorized rule by filing a certified copy of the rule with the LRB,
together with a copy of JCRAR's decision.
Agency review of rules
The bill requires each agency with any rules published in the code to biennially
submit a report to JCRAR listing all of the following rules promulgated or otherwise
administered by that agency:
1. Unauthorized rules.
2. Rules for which the authority to promulgate has been restricted.
3. Rules that are obsolete or that have been rendered unnecessary.
4. Rules that are duplicative of, superseded by, or in conflict with another rule,
a state statute, a federal statute or regulation, or a court ruling.
5. Economically burdensome rules.
The report must also include 1) a description of the agency's actions, if any, to
address each rule listed in the report and, if the agency has not taken any action to
address a rule listed in the report, an explanation for not taking action; 2) a
description of the status of each rule listed in the previous year's report not otherwise
listed; and 3) if the agency determines that there are no such rules to list, a statement
of that determination.
If an agency identifies an unauthorized rule in the report, the bill requires the
agency to submit a petition to repeal the unauthorized rule, using the process
described above, within 30 days after the report.
Agency review of legislative enactments
The bill requires agencies to review enactments of the legislature (acts) to
determine whether any part of an act results in any of the following consequences:
1. Eliminates or restricts the agency's authority to promulgate any of the
2. Renders any of the agency's rules obsolete or unnecessary.
3. Renders, for any reason, any of the agency's rules not in conformity with or
superseded by a state statute, including due to statutory numbering or terminology
changes in the act.
4. Requires or otherwise necessitates rule making by the agency.
If an agency determines that any such consequence results from an act, within
six months after the act's effective date, the agency must do one or more of the
following, as applicable, to address any consequence identified by the agency:
1. Submit a statement of the scope of a proposed rule to address any such
consequence to the governor, unless the act requires otherwise or unless the agency
submits a notice to JCRAR explaining why it is unable to submit the statement of
scope within that time period and an estimate of when the agency plans to submit
the statement of scope.
2. Submit a petition to use the expedited procedure described above for
repealing an unauthorized rule to the Legislative Council Staff.
3. Submit a request to the LRB for the LRB to use its revision authority to make
certain changes to the code.
Biennial report by Legislative Reference Bureau
The bill requires the LRB to biennially report to JCRAR regarding rules in the
code that the LRB has identified as possibly being in need of revision.
Retrospective economic impact analyses for existing rules
The bill allows JCRAR to direct an agency to prepare a retrospective economic
impact analysis for any of an agency's rules that are published in the code. JCRAR
may identify one or more specific chapters, sections, or other subunits in the code
that are administered by the agency as the rules that are to be the subject of the
analysis and may specify a deadline for the preparation of the analysis. An agency
must include in a retrospective economic impact analysis a comparison of the actual
economic effect of the rules to any economic impact analysis that analyzed the
economic effect of the rules when they were proposed. The bill otherwise requires
an agency to prepare a retrospective economic impact analysis in a manner similar
to that prescribed for an economic impact analysis for a proposed rule.
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:
13.92 (2) (jg) of the statutes is created to read: