The small business acted or failed to act in response to inaccurate advice given to the small business by the agency's employee, officer, or agent with regulatory responsibility for that legal requirement.
The small business may commence the action in the circuit court for the county where the property affected is located or, if no property is affected, in the circuit court for the county where the dispute arose.
The circuit court may issue an order enjoining the imposition of the penalty if the court determines that par. (b) 1.
Each agency shall designate at least one employee to serve as the small business regulatory coordinator for the agency, and shall publicize that employee's electronic mail address and telephone number. The small business regulatory coordinator shall act as a contact person for small business regulatory issues for the agency.
Rules that do not affect small businesses directly, including, but not limited to, rules relating to county or municipal administration of state and federal programs.
Review of rules affecting housing. 227.115(1)(a)
"Department" means the department of administration.
(2) Report on rules affecting housing.
If a proposed rule directly or substantially affects the development, construction, cost, or availability of housing in this state, the department shall prepare a report on the proposed rule before it is submitted to the legislative council staff under s. 227.15
. The department may request any information from other state agencies, local governments or individuals or organizations that is reasonably necessary for the department to prepare the report. The department shall prepare the report within 30 days after the rule is submitted to the department.
(3) Findings of the department to be contained in the report. 227.115(3)(a)(a)
The report of the department shall contain information about the effect of the proposed rule on housing in this state, including information on the effect of the proposed rule on all of the following:
The policies, strategies and recommendations of the state housing strategy plan.
The cost of constructing, rehabilitating, improving or maintaining single family or multifamily dwellings.
The cost and availability of financing to purchase or develop housing.
The report shall analyze the relative impact of the effects of the proposed rule on low- and moderate-income households.
This section does not apply to emergency rules promulgated under s. 227.24
(5) Rule-making authority.
The department may promulgate any rules necessary for the administration of this section.
Sub. (2) requires a report on the effect of a proposed rule on housing if the "rule directly or substantially affects the development, construction, cost, or availability of housing in this state. . ." The use of the phrase "directly or substantially" demonstrates that not just any effect will trigger the housing impact report requirement. A housing impact report is not required simply because the subject matter of a proposed rule relates to housing, or because the rule tangentially affects housing in some way. Wisconsin Realtors Association v. Public Service Commission of Wisconsin, 2015 WI 63
, ___ Wis. 2d ___, ___ N.W.2d ___, 13-1407
The absence of an explicit, on-the-record determination regarding whether a housing impact report is required is not dispositive and does not mean rules were promulgated without compliance with statutory rule-making procedures. Wisconsin Realtors Association v. Public Service Commission of Wisconsin, 2015 WI 63
, ___ Wis. 2d ___, ___ N.W.2d ___, 13-1407
Rules to include time period. 227.116(1g)
In this section, "permit" means any approval of an agency required as a condition of operating a business in this state.
Each proposed rule submitted to the legislative council under s. 227.15
that includes a requirement for a business to obtain a permit shall specify the number of business days, calculated beginning on the day a permit application is received, within which the agency will review and make a determination on a permit application.
If any existing rule does not comply with sub. (1r)
, the agency that promulgated the rule shall submit to the legislative council a proposed revision of the rule that will bring the rule into compliance with sub. (1r)
. The legislative council staff's review of the proposed revision is limited to determining whether or not the agency has complied with this subsection.
(3) Subsections (1r)
do not apply to a rule if the rule, or a law under which the rule was promulgated, effective prior to November 17, 1983, contains a specification of a time period for review and determination on a permit application.
If an agency fails to review and make a determination on a permit application within the time period specified in a rule or law, for each such failure the agency shall prepare a report and submit it to the department of safety and professional services within 5 business days of the last day of the time period specified, setting forth all of the following:
The name of the person who submitted the permit application and the business activity for which the permit is required.
Why the review and determination were not completed within the specified time period and a specification of the revised time period within which the review and determination will be completed.
How the agency intends to avoid such failures in the future.
If an agency fails to review and make a determination on a permit application within the time period specified in a rule or law, upon completion of the review and determination for that application, the agency shall notify the department of safety and professional services.
An agency's failure to review and make a determination on a permit application within the time period specified in a rule or law does not relieve any person from the obligation to secure a required permit nor affect in any way the agency's authority to interpret the requirements of or grant or deny permits.
If a court finds that an agency failed to review and make a determination on a permit application within the time period specified in a rule or law, that finding shall not constitute grounds for declaring the agency's determination invalid.
Review of rules impacting energy availability. 227.117(1)(1)
The public service commission shall prepare an energy impact report on any proposed rule if, not later than 30 days after the public hearing under s. 227.18
, the chairperson or ranking minority member of a standing committee, the speaker of the assembly, or the presiding officer of the senate requests in writing that the commission determine the rule's impact on the cost or reliability of electricity generation, transmission, or distribution or of fuels used in generating electricity. The energy impact report shall include an evaluation and related findings and conclusions on the probable impact of the proposed rule on the cost or reliability of electricity generation, transmission, or distribution or of fuels used in generating electricity.
Within 30 days after the written request is submitted to the public service commission, the commission shall submit a copy of any energy impact report prepared under sub. (1)
to the agency that proposed the rule that resulted in the report.
An agency that receives an energy impact report under sub. (2)
, shall consider the energy impact report before submitting the notification and report to the legislature under s. 227.19 (2)
History: 2003 a. 277
Petition for rules. 227.12(1)(1)
Unless the right to petition for a rule is restricted by statute to a designated group or unless the form of procedure for a petition is otherwise prescribed by statute, a municipality, an association which is representative of a farm, labor, business or professional group, or any 5 or more persons having an interest in a rule may petition an agency requesting it to promulgate a rule.
A petition shall state clearly and concisely:
The substance or nature of the rule making requested.
The reason for the request and the petitioners' interest in the requested rule.
A reference to the agency's authority to promulgate the requested rule.
Except as provided in sub. (4)
, within a reasonable period of time after the receipt of a petition under this section, an agency shall either deny the petition in writing or proceed with the requested rule making. If the agency denies the petition, it shall promptly notify the petitioner of the denial, including a brief statement of the reason for the denial. If the agency proceeds with the requested rule making, it shall follow the procedures prescribed in this subchapter.
If a petition to the department of revenue establishes that the department has established a standard by which it is construing a state tax statute, but has not promulgated a rule to adopt the standard or published the standard in a manner that is available to the public, the department shall, as provided under s. 227.135
, submit a statement of the scope of the proposed rule to the governor no later than 90 days after receiving the petition. No later than 270 days after the statement is approved by the governor, the department shall submit the proposed rule in final draft form to the governor for the governor's approval, as provided under s. 227.185
. At the department's request, the governor may, at any time prior to the expiration of any deadline specified in this subsection, extend the time for submitting the statement or proposed rule in draft form for any period not to exceed 60 days. The governor may grant more than one extension under this subsection, but the total period for all such extensions may not exceed 120 days. The rule need not adhere to the standard established by the department, but shall address the same circumstances as the standard addresses. If the department fails to comply with this subsection, any of the petitioners may commence an action in circuit court to compel the department's compliance. If an action is commenced under this subsection, the court may compel the department to provide information to the court related to the degree to which the department is enforcing the standard, except that the information provided by the department shall not disclose the identity of any person who is not a party to the action.
History: 1985 a. 182
; 2011 a. 68
Advisory committees and informal consultations.
An agency may use informal conferences and consultations to obtain the viewpoint and advice of interested persons with respect to contemplated rule making. An agency also may appoint a committee of experts, interested persons or representatives of the public to advise it with respect to any contemplated rule making. The committee shall have advisory powers only.
History: 1985 a. 182
Statements of scope of proposed rules. 227.135(1)(1)
An agency shall prepare a statement of the scope of any rule that it plans to promulgate. The statement shall include all of the following:
A description of existing policies relevant to the rule and of new policies proposed to be included in the rule and an analysis of policy alternatives.
Estimates of the amount of time that state employees will spend to develop the rule and of other resources necessary to develop the rule.
A description of all of the entities that may be affected by the rule.
A summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
An agency that has prepared a statement of the scope of the proposed rule shall present the statement to the governor and to the individual or body with policy-making powers over the subject matter of the proposed rule for approval. The agency may not send the statement to the legislative reference bureau for publication under sub. (3)
until the governor issues a written notice of approval of the statement. The individual or body with policy-making powers may not approve the statement until at least 10 days after publication of the statement under sub. (3)
. No state employee or official may perform any activity in connection with the drafting of a proposed rule except for an activity necessary to prepare the statement of the scope of the proposed rule until the governor and the individual or body with policy-making powers over the subject matter of the proposed rule approve the statement.
If the governor approves a statement of the scope of a proposed rule under sub. (2)
, the agency shall send an electronic copy of the statement to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register. On the same day that the agency sends the statement to the legislative reference bureau, the agency shall send a copy of the statement to the secretary of administration. The agency shall include with any statement of scope sent to the legislative reference bureau the date of the governor's approval of the statement of scope. The legislative reference bureau shall assign a discrete identifying number to each statement of scope and shall include that number and the date of the governor's approval in the publication of the statement of scope in the register.
If at any time after a statement of the scope of a proposed rule is approved under sub. (2)
the agency changes the scope of the proposed rule in any meaningful or measurable way, including changing the scope of the proposed rule so as to include in the scope any activity, business, material, or product that is not specifically included in the original scope of the proposed rule, the agency shall prepare and obtain approval of a revised statement of the scope of the proposed rule in the same manner as the original statement was prepared and approved under subs. (1)
. No state employee or official may perform any activity in connection with the drafting of the proposed rule except for an activity necessary to prepare the revised statement of the scope of the proposed rule until the revised statement is so approved.
In Coyne v. Walker
, 2015 WI App 21
, the Court of Appeals held that provisions of 2011 Wisconsin Act 21
that give to the Governor, and in limited cases, the Secretary of Administration, the power to intervene in the process of drafting and promulgating administrative rules are unconstitutional as applied to the Superintendent of Public Instruction.
Finding Administrative Intent in the Wisconsin Administrative Register. Sefarbi. Wis. Law. April 2003.
Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.
Economic impact analyses of proposed rules. 227.137(2)(2)
An agency shall prepare an economic impact analysis for a proposed rule before submitting the proposed rule to the legislative council staff under s. 227.15
An economic impact analysis of a proposed rule shall contain information on the economic effect of the proposed rule on specific businesses, business sectors, public utility ratepayers, local governmental units, and the state's economy as a whole. When preparing the analysis, the agency shall solicit information and advice from businesses, associations representing businesses, local governmental units, and individuals that may be affected by the proposed rule. The agency shall prepare the economic impact analysis in coordination with local governmental units that may be affected by the proposed rule. The agency may request information that is reasonably necessary for the preparation of an economic impact analysis from other businesses, associations, local governmental units, and individuals and from other agencies. The economic impact analysis shall include all of the following:
An analysis and quantification of the policy problem that the proposed rule is intending to address, including comparisons with the approaches used by the federal government and by Illinois, Iowa, Michigan, and Minnesota to address that policy problem and, if the approach chosen by the agency to address that policy problem is different from those approaches, a statement as to why the agency chose a different approach.
An analysis and detailed quantification of the economic impact of the proposed rule, including the implementation and compliance costs that are reasonably expected to be incurred by or passed along to the businesses, local governmental units, and individuals that may be affected by the proposed rule.
An analysis of the actual and quantifiable benefits of the proposed rule, including an assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.
An analysis of alternatives to the proposed rule, including the alternative of not promulgating the proposed rule.
A determination made in consultation with the businesses, local governmental units, and individuals that may be affected by the proposed rule as to whether the proposed rule would adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state.
Except as provided in this paragraph, if the economic impact analysis relates to a proposed rule of the department of safety and professional services under s. 101.63 (1)
establishing standards for the construction of a dwelling, as defined in s. 101.61 (1)
, an analysis of whether the proposed rule would increase the cost of constructing or remodeling such a dwelling by more than $1,000. This paragraph applies notwithstanding that the purpose of the one- and 2-family dwelling code under s. 101.60
includes promoting interstate uniformity in construction standards. This paragraph does not apply to a proposed rule whose promulgation has been authorized under s. 227.19 (5) (fm)
On the same day that the agency submits the economic impact analysis to the legislative council staff under s. 227.15 (1)
, the agency shall also submit that analysis to the department of administration, to the governor, and to the chief clerks of each house of the legislature, who shall distribute the analysis to the presiding officers of their respective houses, to the chairpersons of the appropriate standing committees of their respective houses, as designated by those presiding officers, and to the cochairpersons of the joint committee for review of administrative rules. If a proposed rule is modified after the economic impact analysis is submitted under this subsection so that the economic impact of the proposed rule is significantly changed, the agency shall prepare a revised economic impact analysis for the proposed rule as modified. A revised economic impact analysis shall be prepared and submitted in the same manner as an original economic impact analysis is prepared and submitted.
This section does not apply to emergency rules promulgated under s. 227.24
If an economic impact analysis regarding a proposed rule indicates that a total of $20,000,000 or more in implementation and compliance costs are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals as a result of the proposed rule, the department of administration shall review the proposed rule and issue a report. The agency may not submit a proposed rule to the legislature for review under s. 227.19 (2)
until the agency receives a copy of the department's report and the approval of the secretary of administration. The report shall include all of the following findings:
That the economic impact analysis is supported by related documentation contained or referenced in the economic impact analysis.
That the agency has statutory authority to promulgate the proposed rule.
That the proposed rule, including any administrative requirements, is consistent with and not duplicative of other state rules or federal regulations.
That the agency has adequately documented the factual data and analytical methodologies that the agency used in support of the proposed rule and the related findings that support the regulatory approach that the agency chose for the proposed rule.
Before issuing a report under sub. (6)
, the department of administration may return a proposed rule to the agency for further consideration and revision with a written explanation of why the proposed rule is being returned. If the agency head disagrees with the department's reasons for returning the proposed rule, the agency head shall so notify the department in writing. The secretary of administration shall approve the proposed rule when the agency has adequately addressed the issues raised during the department's review of the rule.