AB1070,27,44 (b) “Guidance document" does not include any of the following:
AB1070,27,65 1. A rule that has been promulgated and that is currently in effect or a proposed
6rule that is in the process of being promulgated.
AB1070,27,107 2. A standard adopted, or a statement of policy or interpretation made, whether
8preliminary or final, in the decision of a contested case, in a private letter ruling
9under s. 73.035, or in an agency decision upon or disposition of a particular matter
10as applied to a specific set of facts.
AB1070,27,1411 3. Any document or activity described in sub. (13) (a) to (zz), except that
12“guidance document" includes a pamphlet or other explanatory material described
13under sub. (13) (r) that otherwise satisfies the definition of “guidance document"
14under par. (a).
AB1070,27,1615 4. Any document that any statute specifically provides is not required to be
16promulgated as a rule.
AB1070,27,1717 5. A declaratory ruling issued under s. 227.41.
AB1070,27,1818 6. A pleading or brief filed in court by the state, an agency, or an agency official.
AB1070,27,2119 7. A letter or written legal advice of the department of justice or a formal or
20informal opinion of the attorney general, including an opinion issued under s.
21165.015 (1).
AB1070,27,2322 8. Any document or communication for which a procedure for public input,
23other than that provided under s. 227.112 (1), is provided by law.
AB1070,27,2524 9. Any document or communication that is not subject to the right of inspection
25and copying under s. 19.35 (1).
AB1070,32
1Section 32. 227.01 (13) (intro.) of the statutes is amended to read:
AB1070,28,92 227.01 (13) (intro.) “Rule" means a regulation, standard, statement of policy,
3or general order of general application which that has the effect force of law and
4which that is issued by an agency to implement, interpret, or make specific
5legislation enforced or administered by the agency or to govern the organization or
6procedure of the agency. “Rule" includes a modification of a rule under s. 227.265.
7“Rule" does not include, and s. 227.10 does not apply to, any action or inaction of an
8agency, whether it would otherwise meet the definition under this subsection, which
9that:
AB1070,33 10Section 33 . 227.05 of the statutes is created to read:
AB1070,28,16 11227.05 Agency publications. An agency shall identify the applicable
12provision of federal law or the applicable state statutory or administrative code
13provision that supports any statement or interpretation of law that the agency
14makes in any publication, whether in print or on the agency's Internet site, including
15guidance documents, forms, pamphlets, or other informational materials, regarding
16the laws the agency administers.
AB1070,34 17Section 34 . Subchapter II (title) of chapter 227 [precedes 227.10] of the
18statutes is amended to read:
AB1070,28,1919 Chapter 227
AB1070,28,2020 Subchapter II
AB1070,28,2221 ADMINISTRATIVE RULES and
22 GUIDANCE DOCUMENTS
AB1070,35 23Section 35 . 227.10 (2g) of the statutes is created to read:
AB1070,28,2524 227.10 (2g) No agency may seek deference in any proceeding based on the
25agency's interpretation of any law.
AB1070,36
1Section 36. 227.11 (title) of the statutes is amended to read:
AB1070,29,3 2227.11 (title) Extent to which chapter confers Agency rule-making
3authority.
AB1070,37 4Section 37 . 227.11 (3) of the statutes is created to read:
AB1070,29,105 227.11 (3) (a) A plan that is submitted to the federal government for the
6purpose of complying with a requirement of federal law does not confer rule-making
7authority and cannot be used by an agency as authority to promulgate rules. No
8agency may agree to promulgate a rule as a component of a compliance plan unless
9the agency has explicit statutory authority to promulgate the rule at the time the
10compliance plan is submitted.
AB1070,29,1611 (b) A settlement agreement, consent decree, or court order does not confer
12rule-making authority and cannot be used by an agency as authority to promulgate
13rules. No agency may agree to promulgate a rule as a term in any settlement
14agreement, consent decree, or stipulated order of a court unless the agency has
15explicit statutory authority to promulgate the rule at the time the settlement
16agreement, consent decree, or stipulated order of a court is executed.
AB1070,38 17Section 38 . 227.112 of the statutes is created to read:
AB1070,29,23 18227.112 Guidance documents. (1) (a) Before adopting a guidance document,
19an agency shall submit to the legislative reference bureau the proposed guidance
20document with a notice of a public comment period on the proposed guidance
21document under par. (b), in a format approved by the legislative reference bureau,
22for publication in the register. The notice shall specify the place where comments
23should be submitted and the deadline for submitting those comments.
AB1070,30,624 (b) The agency shall provide for a period for public comment on a proposed
25guidance document submitted under par. (a), during which any person may submit

1written comments to the agency with respect to the proposed guidance document.
2Except as provided in par. (c), the period for public comment shall end no sooner than
3the 21st day after the date on which the proposed guidance document is published
4in the register under s. 35.93 (2) (b) 3. im. The agency may not adopt the proposed
5guidance document until the comment period has concluded and the agency has
6complied with par. (d).
AB1070,30,87 (c) An agency may hold a public comment period shorter than 21 days with the
8approval of the governor.
AB1070,30,129 (d) An agency shall retain all written comments submitted during the public
10comment period under par. (b) and shall consider those comments in determining
11whether to adopt the guidance document as originally proposed, modify the proposed
12guidance document, or take any other action.
AB1070,30,19 13(2) An agency shall post each guidance document that the agency has adopted
14on the agency's Internet site and shall permit continuing public comment on the
15guidance document. The agency shall ensure that each guidance document that the
16agency has adopted remains on the agency's Internet site as provided in this
17subsection until the guidance document is no longer in effect, is no longer valid, or
18is superseded or until the agency otherwise rescinds its adoption of the guidance
19document.
AB1070,31,2 20(3) A guidance document does not have the force of law and does not provide
21the authority for implementing or enforcing a standard, requirement, or threshold,
22including as a term or condition of any license. An agency that proposes to rely on
23a guidance document to the detriment of a person in any proceeding shall afford the
24person an adequate opportunity to contest the legality or wisdom of a position taken

1in the guidance document. An agency may not use a guidance document to foreclose
2consideration of any issue raised in the guidance document.
AB1070,31,8 3(4) If an agency proposes to act in any proceeding at variance with a position
4expressed in a guidance document, it shall provide a reasonable explanation for the
5variance. If an affected person in any proceeding may have relied reasonably on the
6agency's position, the explanation must include a reasonable justification for the
7agency's conclusion that the need for the variance outweighs the affected person's
8reliance interest.
AB1070,31,11 9(5) Persons that qualify under s. 227.12 to petition an agency to promulgate
10a rule may, as provided in s. 227.12, petition an agency to promulgate a rule in place
11of a guidance document.
AB1070,31,21 12(6) Any guidance document shall be signed by the secretary or head of the
13agency below the following certification: “I have reviewed this guidance document
14or proposed guidance document and I certify that it complies with sections 227.10
15and 227.11 of the Wisconsin Statutes. I further certify that the guidance document
16or proposed guidance document contains no standard, requirement, or threshold
17that is not explicitly required or explicitly permitted by a statute or a rule that has
18been lawfully promulgated. I further certify that the guidance document or proposed
19guidance document contains no standard, requirement, or threshold that is more
20restrictive than a standard, requirement, or threshold contained in the Wisconsin
21Statutes.”
AB1070,32,2 22(7) This section does not apply to guidance documents adopted before the first
23day of the 7th month beginning after the effective date of this subsection .... [LRB
24inserts date], but on that date any guidance document that has not been adopted in

1accordance with sub. (1) or that does not contain the certification required under sub.
2(6) shall be considered rescinded.
AB1070,32,5 3(8) The legislative council staff shall provide agencies with assistance in
4determining whether documents and communications are guidance documents that
5are subject to the requirements under this section.
AB1070,39 6Section 39 . 227.13 of the statutes is amended to read:
AB1070,32,14 7227.13 Advisory committees and informal consultations. An agency may
8use informal conferences and consultations to obtain the viewpoint and advice of
9interested persons with respect to contemplated rule making. An agency also may
10also appoint a committee of experts, interested persons or representatives of the
11public to advise it with respect to any contemplated rule making. The Such a
12committee shall have advisory powers only. Whenever an agency appoints a
13committee under this section, the agency shall submit a list of the members of the
14committee to the joint committee for review of administrative rules.
AB1070,40 15Section 40 . 227.135 (1) (g) of the statutes is created to read:
AB1070,32,1916 227.135 (1) (g) A statement as to whether the agency anticipates that the
17proposed rule will have minimal or no economic impact, a moderate economic impact,
18or a significant economic impact, whether locally, statewide, or on a sector of the
19economy.
AB1070,41 20Section 41 . 227.135 (1) (h) of the statutes is created to read:
AB1070,33,421 227.135 (1) (h) For a proposed emergency rule promulgated under s. 227.24,
22an explanation of why the rule is necessary for the preservation of the public peace,
23health, safety, or welfare. If the rule is exempt from the required finding of
24emergency, the statement of scope shall cite the act number and section or the statute
25section authorizing the promulgation of an emergency rule or a statement that the

1rule is promulgated at the direction of the joint committee for review of
2administrative rules under s. 227.26 (2) (b). The agency shall also include a
3statement as to whether the agency will promulgate a corresponding permanent rule
4and the agency's anticipated time line for promulgating the permanent rule.
AB1070,42 5Section 42 . 227.135 (2) of the statutes is renumbered 227.135 (2) (a) 1. and
6amended to read:
AB1070,33,187 227.135 (2) (a) 1. An Except as provided in subd. 2., an agency that has
8prepared a statement of the scope of the proposed rule shall present the statement
9to the department of administration, which shall make a determination as to
10whether the agency has the explicit authority to promulgate the rule as proposed in
11the statement of scope and shall report the statement of scope and its determination
12to the governor who, in his or her discretion, may approve or reject the statement of
13scope. The Except as provided in subd. 2., the agency may not send the statement
14to the legislative reference bureau for publication under sub. (3) until the governor
15issues a written notice of approval of the statement and may not, without the written
16approval of the governor, send the statement to the legislative reference bureau for
17publication under sub. (3) more than 30 days after the date of the governor's approval
18of the statement of scope
.
AB1070,34,2 19(b) The An agency that has prepared a statement of the scope of the proposed
20rule
shall also present the statement to the individual or body with policy-making
21powers over the subject matter of the proposed rule for approval. The individual or
22body with policy-making powers may not approve the statement until at least 10
23days after publication of the statement under sub. (3) and, if a preliminary public
24hearing and comment period are held by the agency under s. 227.136, until the

1individual or body has received and reviewed any public comments and feedback
2received from the agency under s. 227.136 (5).
AB1070,34,9 3(c) No state employee or official may perform any activity in connection with
4the drafting of a proposed rule, except for an activity necessary to prepare the
5statement of the scope of the proposed rule, until the governor and the individual or
6body with policy-making powers over the subject matter of the proposed rule
7approve
the statement has been approved as required under pars. (a) and (b). This
8subsection paragraph does not prohibit an agency from performing an activity
9necessary to prepare a petition and proposed rule for submission under s. 227.26 (4).
AB1070,43 10Section 43 . 227.135 (2) (a) 2. of the statutes is created to read:
AB1070,34,1211 227.135 (2) (a) 2. The requirement under subd. 1. does not apply to statements
12of scope prepared by the department of public instruction.
AB1070,44 13Section 44 . 227.135 (3) of the statutes is amended to read:
AB1070,35,214 227.135 (3) If the governor approves a An agency that prepares a statement
15of the scope of a proposed rule under sub. (2), the agency (1) shall, subject to sub. (2)
16(a) 1.,
send an electronic copy of the statement to the legislative reference bureau,
17in a format approved by the legislative reference bureau, for publication in the
18register. On the same day that the agency sends the statement to the legislative
19reference bureau, the agency shall send a copy of the statement to the secretary of
20administration and to the chief clerks of each house of the legislature, who shall
21distribute the statement to the cochairpersons of the joint committee for review of
22administrative rules. The agency shall include with any statement of scope sent to
23the legislative reference bureau the date of the governor's approval of the statement
24of scope if such approval is required under sub. (2) (a). The legislative reference
25bureau shall assign a discrete identifying number to each statement of scope and

1shall include that number and the date of the governor's approval, if required, in the
2publication of the statement of scope in the register.
AB1070,45 3Section 45 . 227.135 (4) of the statutes is renumbered 227.135 (4) (a) (intro.)
4and amended to read:
AB1070,35,135 227.135 (4) (a) (intro.) If at any time after a statement of the scope of a proposed
6rule is approved under sub. (2) the agency changes the scope of the proposed rule in
7any meaningful or measurable way, including changing the scope of the proposed
8rule so as to include in the scope any activity, business, material, or product that is
9not specifically included in the original scope of the proposed rule,
the agency shall
10prepare and obtain approval of a revised statement of the scope of the proposed rule
11in the same manner as the original statement was prepared and approved under
12subs. (1) and (2). No For purposes of this subsection, a meaningful or measurable
13 change includes any of the following:
AB1070,35,18 14(b) Whenever an agency is required to prepare a revised statement of scope
15under this subsection, no
state employee or official may perform any activity in
16connection with the drafting of the proposed rule except for an activity necessary to
17prepare the revised statement of the scope of the proposed rule until the revised
18statement is so approved as provided in sub. (2).
AB1070,46 19Section 46 . 227.135 (4) (a) 1. to 6. of the statutes are created to read:
AB1070,35,2020 227.135 (4) (a) 1. A change to the objectives of the proposed rule.
AB1070,35,2121 2. A change to the basis and purpose of the proposed rule.
AB1070,35,2222 3. A change to the policies to be included in the proposed rule.
AB1070,35,2323 4. A change to the entities affected by the proposed rule.
AB1070,35,2524 5. A change to the overall breadth or scope of the regulation in the proposed
25rule.
AB1070,36,3
16. A change to the scope of the proposed rule so as to include in the scope any
2activity, business, material, or product that is not specifically included in the original
3statement.
AB1070,47 4Section 47 . 227.135 (6) of the statutes is created to read:
AB1070,36,75 227.135 (6) An agency that intends to concurrently promulgate an emergency
6rule and a permanent rule that are identical in substance may submit one statement
7of scope indicating this intent.
AB1070,48 8Section 48 . 227.137 (2) of the statutes is amended to read:
AB1070,36,149 227.137 (2) An agency shall prepare an economic impact analysis for a
10proposed rule before submitting the proposed rule to the legislative council staff
11under s. 227.15. Prior to preparing an economic impact analysis as provided in this
12subsection, the agency shall review the statement of scope for the proposed rule
13prepared under s. 227.135 to determine whether a revised statement of scope is
14required under s. 227.135 (4).
AB1070,49 15Section 49. 227.137 (2m) of the statutes is created to read:
AB1070,36,1916 227.137 (2m) An agency's economic impact analysis under sub. (2) or revised
17economic impact analysis under sub. (4) shall be prepared and submitted separately
18from any fiscal estimate or revised fiscal estimate prepared and submitted under s.
19227.14 (4) (a) or (d).
AB1070,50 20Section 50 . 227.137 (3) (e) of the statutes is renumbered 227.137 (3) (e) (intro.)
21and amended to read:
AB1070,37,222 227.137 (3) (e) (intro.) A determination made in consultation with the
23businesses, local governmental units, and individuals that may be affected by the
24proposed rule as to whether the proposed rule would adversely affect in a material
25way the economy, a sector of the economy, productivity, jobs, or the overall economic

1competitiveness of this state. The agency shall make the determination required
2under this paragraph by doing all of the following:
AB1070,51 3Section 51 . 227.137 (3) (e) 1. to 4. of the statutes are created to read:
AB1070,37,54 227.137 (3) (e) 1. Compiling a list of affected persons and potential economic
5concerns identified in the comments solicited by the agency.
AB1070,37,66 2. Contacting affected persons to discuss economic concerns.
AB1070,37,77 3. Considering any raised concerns in drafting the economic impact analysis.
AB1070,37,108 4. Documenting in the economic impact analysis the persons who were
9consulted and whether the agency's determination is disputed by any of the affected
10persons.
AB1070,52 11Section 52 . 227.137 (3m) of the statutes is created to read:
AB1070,37,2312 227.137 (3m) (a) When soliciting comments under sub. (3) for an economic
13impact analysis, an agency shall accept comments for a period of at least 14 calendar
14days if, under s. 227.135 (1) (g), the statement of scope for the proposed rule indicates
15that the proposed rule will have minimal or no economic impact, at least 30 calendar
16days if it indicates a moderate economic impact, and at least 60 calendar days if it
17indicates a significant economic impact or if the agency anticipates that the proposed
18rule will result in $10,000,000 or more in implementation and compliance costs being
19incurred by or passed along to businesses, local governmental units, and individuals
20over any 2-year period. If the agency subsequently determines that the anticipated
21economic impact will be greater than indicated in the statement of scope, the agency
22shall adjust the comment period accordingly. An agency may not reduce a comment
23period once determined under this subsection.
AB1070,37,2524 (b) This subsection does not apply to a person preparing an independent
25economic impact analysis under sub. (4m).
AB1070,53
1Section 53. 227.137 (4) of the statutes is amended to read:
AB1070,38,192 227.137 (4) On the same day that the agency submits the economic impact
3analysis to the legislative council staff under s. 227.15 (1), the agency shall also
4submit that analysis to the department of administration, to the governor, and to the
5chief clerks of each house of the legislature, who shall distribute the analysis to the
6presiding officers of their respective houses, to the chairpersons of the appropriate
7standing committees of their respective houses, as designated by those presiding
8officers, and to the cochairpersons of the joint committee for review of administrative
9rules. If a proposed rule is modified after the economic impact analysis is submitted
10under this subsection so that the economic impact of the proposed rule is
11significantly changed, the agency shall prepare a revised economic impact analysis
12for the proposed rule as modified. For purposes of this subsection, a significant
13change includes an increase or a decrease of at least 10 percent or $50,000, whichever
14is greater, in the expected implementation and compliance costs reasonably expected
15to be incurred by or passed along to a majority of the businesses, local governmental
16units, and individuals as a result of the proposed rule, as identified under sub. (3) (b),
17or a significant change in the persons expected to be affected by the proposed rule.

18A revised economic impact analysis shall be prepared and submitted in the same
19manner as an original economic impact analysis is prepared and submitted.
AB1070,54 20Section 54. 227.138 (1) (intro.) of the statutes is renumbered 227.138 (1) and
21amended to read:
AB1070,39,222 227.138 (1) The joint committee for review of administrative rules may direct
23an agency to prepare a retrospective economic impact analysis for any of an agency's
24rules that are published in the code. The committee may identify one or more specific
25chapters, sections, or other subunits in the code that are administered by the agency

1as the rules that are to be the subject of the analysis and may specify a deadline for
2the preparation of the analysis.
AB1070,39,14 3(1r) A retrospective economic impact analysis shall contain information on the
4economic effect of the rules on specific businesses, business sectors, public utility
5ratepayers, local governmental units, and the state's economy as a whole. When
6preparing the analysis, the agency or person preparing the analysis shall solicit
7information and advice from businesses, associations representing businesses, local
8governmental units, and individuals that have been affected by the rules. The
9agency or person shall prepare the retrospective economic impact analysis in
10coordination with local governmental units that have been affected by the rules. The
11agency or person may request information that is reasonably necessary for the
12preparation of a retrospective economic impact analysis from other businesses,
13associations, local governmental units, and individuals and from other agencies.
14The retrospective economic impact analysis shall include all of the following:
AB1070,55 15Section 55 . 227.138 (1) (a) to (h) of the statutes are renumbered 227.138 (1r)
16(a) to (h).
AB1070,56 17Section 56. 227.138 (1g) of the statutes is created to read:
AB1070,40,218 227.138 (1g) Within 90 days after an agency submits a retrospective economic
19impact analysis under sub. (2), either cochairperson of the joint committee for review
20of administrative rules may request an independent retrospective economic impact
21analysis to be prepared using the same procedure and payment methods described
22under s. 227.137 (4m) (am) and (b). A person preparing an independent retrospective
23economic impact analysis under this subsection shall prepare the independent
24retrospective economic impact analysis for the same rules that were the subject of

1the agency's analysis under sub. (1) and shall include the information that is
2required under sub. (1r).
AB1070,57 3Section 57 . 227.138 (2) of the statutes is amended to read:
AB1070,40,134 227.138 (2) An agency or person that prepares a retrospective economic impact
5analysis under sub. (1) or (1g) shall submit that analysis to the department of
6administration, to the governor, and to the chief clerks of each house of the
7legislature, who shall distribute the analysis to the presiding officers of their
8respective houses, to the chairpersons of the appropriate standing committees of
9their respective houses, as designated by those presiding officers, and to the
10cochairpersons of the joint committee for review of administrative rules. The agency
11or person shall also send an electronic copy of the analysis to the legislative reference
12bureau, in a format approved by the legislative reference bureau, for publication in
13the register.
AB1070,58 14Section 58 . 227.18 (3m) of the statutes is created to read:
AB1070,40,1615 227.18 (3m) If, after holding a hearing under this section, an agency makes any
16changes to the proposed rule, the agency shall do all of the following:
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