AB389: Bill Text

3. Required an agency to prepare and obtain approval of a revised statement of scope if after a statement of scope is approved the agency changes the scope of the proposed rule in any meaningful or measurable way. Prior law did not require a revised statement of scope if the scope of a proposed rule changed after approval of the original statement of scope.

4. Required an agency to prepare and obtain approval of a statement of scope for a proposed emergency rule in the same manner as a statement of scope is prepared and approved for a nonemergency rule. Prior law did not require a statement of scope for an emergency rule.

This bill eliminates those changes, thereby restoring prior law.

In addition, 2011 Wisconsin Act 21 required an agency to submit a proposed rule in final draft form to the governor for approval before the rule may be submitted to the legislature for review and to submit a proposed emergency rule in final draft form to the governor for approval before the emergency rule may be filed with the Legislative Reference Bureau (LRB) for publication. This bill eliminates those requirements.

Economic impact reports for proposed rules

When report must be prepared. 2011 Wisconsin Act 21 required an economic impact analysis, which is an analysis of the economic effect of a proposed rule on specific businesses, business sectors, public utility ratepayers, local governmental units, and the state's economy as a whole, to be prepared for all rules proposed by any agency. The act also required the Department of Administration to issue a report on a proposed rule, and the secretary of administration (secretary) to approve a proposed rule, if the economic impact analysis 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 and individuals as a result of the proposed rule. In addition, the act required an agency to prepare a revised economic impact analysis if a proposed rule is modified after the original economic impact analysis is submitted so as to significantly change the economic impact of the proposed rule.

Prior law required only the Department of Agriculture, Trade and Consumer Protection, the Department of Commerce (which has since been replaced by the Wisconsin Economic Development Corporation), the Department of Natural Resources, the Department of Transportation, or the Department of Workforce Development to prepare an economic impact report, rather than analysis, and only if the secretary directed the report to be prepared on the petition of a municipality, an association that represents a farm, labor, business, or professional group, or five or more persons who would be affected by the proposed rule. Prior law permitted the secretary to direct the preparation of an economic impact report in any case and required the secretary to direct the preparation of such a report if: 1) the proposed rule would cost affected persons $20,000,000 or more during each of the first five years after the rule's implementation to comply with the rule; or 2) the rule would adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.

This bill eliminates the changes made by 2011 Wisconsin Act 21 and restores prior law with respect to when an economic impact report must be prepared.

Content of report. 2011 Wisconsin Act 21 also required certain additional information to be included in an economic impact analysis. Specifically, in addition to the information that was required to be included in an economic impact report under prior law, the act required an economic impact analysis to also include:

1. Information on the effect of a proposed rule on public utility ratepayers.

2. An analysis of alternatives to the proposed rule, including the alternative of not promulgating the rule.

3. A determination made in consultation with the businesses and that individuals who 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.

4. Comparisons with the approaches used by the federal government and by Illinois, Iowa, Michigan, and Minnesota to address the policy problem that the proposed rule is intending to address 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.

5. An assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.

Under prior law, an economic impact report was required to contain information on the effect of the proposed rule on specific businesses, business sectors, and the state's economy and to include all of the following: 1) an analysis and quantification of the problem, including any risks to public health or the environment, that the rule is intending to address; 2) an analysis and quantification of the economic impact of the rule, including costs reasonably expected to be incurred by the state, governmental units, associations, businesses, and affected individuals; and 3) an analysis of benefits of the rule, including how the rule reduces the risks and addresses the problems that the rule is intended to address.

This bill eliminates the changes made by 2011 Wisconsin Act 21 and restores prior law with respect to the information that must be included in an economic impact report.

Legislative review of proposed rules

Under current law, when a proposed rule is in final form, the agency must notify the legislature as to that fact and the presiding officer of each house of the legislature must then direct the proposed rule to be referred to one standing committee of his or her house for review. 2011 Wisconsin Act 21 changed the date by which a proposed rule must be submitted to the legislature in order for the proposed rule to be reviewed by the current legislature to the last day of the legislature's final general-business floorperiod of the biennial session. The act, however, permitted the presiding officers of both houses of the legislature to refer a proposed rule submitted to the legislature after that date for review during the current legislative session.

Prior law required a rule to be submitted to the legislature by September 1 of an even-numbered year in order for the proposed rule to be reviewed during the current legislative session and did not permit a proposed rule submitted after that date to be reviewed during the current legislative session.

This bill restores prior law with respect to the date by which a proposed rule must be submitted to the legislature in order for the proposed rule to be reviewed during the current legislative session.

In addition, 2011 Wisconsin Act 21 required all proposed rules reviewed by a standing committee to be referred to the Joint Committee for Review of Administrative Rules (JCRAR) for review. Moreover, the act permitted JCRAR to request modifications to a proposed rule, nonconcur in a standing committee's objection to a proposed rule, concur in a standing committee's approval of a proposed rule, otherwise approve a proposed rule, waive its jurisdiction over a proposed rule, or object to a proposed rule and to take any of those actions with respect to only a part of a proposed rule. Prior law required JCRAR to review a proposed rule only if a standing committee objected to the proposed rule; permitted JCRAR only to request modifications to a proposed rule, nonconcur in a standing committee's objection to a proposed rule, or object to a proposed rule; and did not permit JCRAR to take action on only a part of a proposed rule.

This bill restores prior law with respect to JCRAR review of a proposed rule.

Declaratory judgments as to validity of rules

2011 Wisconsin Act 21 provided that, subject to certain exceptions, the exclusive means of judicial review of the validity of a rule is by an action for declaratory judgment as to the validity of the rule brought in the circuit court for the county where the party asserting the invalidity of the rule resides or has its principal place of business or, if that party is a nonresident or does not have its principal place of business in this state, in the county where the dispute arose. Prior law required those actions to be brought in the circuit court for Dane County. This bill restores prior law.

2011 Wisconsin Act 21 also required a court that enters a declaratory judgment order determining the validity of a rule to notify the LRB of the court's determination and the LRB to publish a notice of that determination in the register and to insert an annotation of that determination in the Wisconsin Administrative Code. This bill eliminates those requirements.

Rules increasing dwelling construction costs

2011 Wisconsin Act 32 required legislative authorization for a rule that would increase the cost of construction or remodeling of a one- or two-family dwelling by more than $1,000. Specifically, the act provided that if JCRAR objects to a proposed rule because the proposed rule would so increase that cost, the Department of Safety and Professional Services may not promulgate the proposed rule until a bill authorizing promulgation of the proposed is enacted into law (rule authorization bill). For all other types of rules, however, if JCRAR objects to a proposed rule, the department proposing the rule may not promulgate the proposed rule until a bill to prevent promulgation of the proposed rule fails to be enacted. This bill eliminates the requirement that a rule authorization bill be enacted before a proposed rule that would increase the cost of construction or remodeling of a one- or two-family dwelling by more than $1,000 may be promulgated, thereby restoring for such a rule the requirement that a bill to prevent promulgation of the rule fail to be enacted before the rule may be promulgated.

For further information see the state and local 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:

AB389, s. 1 Section 1. 13.92 (4) (a) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,7,6 13.92 (4) (a) The legislative reference bureau shall prepare copy for publication in the Wisconsin administrative code. Whenever the legislative reference bureau receives notice under s. 227.40 (6) of the entry of a declaratory judgment determining the validity or invalidity of a rule, the legislative reference bureau shall insert an annotation of that determination in the Wisconsin administrative code under the rule that was the subject of the determination.

AB389, s. 2 Section 2. 35.93 (4) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,7,18 35.93 (4) Each issue of the Wisconsin administrative register shall contain a notice section in which shall be printed the notices of hearings on rule making which agencies have transmitted to the legislative reference bureau for that purpose, statements of scope of proposed rules under s. 227.135, notices of submittal to the legislative council staff under s. 227.14 (4m), notices of intent to promulgate rules without a public hearing under s. 227.16 (2) (e), notices of referrals of proposed rules to presiding officers under s. 227.19 (2), notices of emergency rules in effect, fiscal estimates for rule-making orders under s. 227.14 (4), notices of declaratory judgments received under s. 227.40 (6), and such other notices as may be required by law or determined by the legislative reference bureau to be appropriate.

AB389, s. 3 Section 3. 227.10 (2m) of the statutes, as created by 2011 Wisconsin Act 21, is repealed.

AB389, s. 4 Section 4. 227.11 (2) (a) (intro.) of the statutes, as affected by 2011 Wisconsin Act 21, is renumbered 227.11 (2) (a) and amended to read:

AB389,8,3 227.11 (2) (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, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:

AB389, s. 5 Section 5. 227.11 (2) (a) 1. to 3. of the statutes, as created by 2011 Wisconsin Act 21, are repealed.

AB389, s. 6 Section 6. 227.135 (2) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,8,22 227.135 (2) 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). If the individual or body with policy-making powers does not disapprove the statement within 30 days after the statement is presented to the individual or body or by the 11th day after publication of the statement in the register, whichever is later, the statement is considered to be approved. 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 approves the statement.

AB389, s. 7 Section 7. 227.135 (3) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,9,5 227.135 (3) If the governor approves a statement of the scope of a proposed rule under sub. (2), the The agency shall send the statement to 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.

AB389, s. 8 Section 8. 227.135 (4) of the statutes, as affected by 2011 Wisconsin Act 21, is repealed.

AB389, s. 9 Section 9. 227.135 (5) of the statutes is created to read:

AB389,9,9 227.135 (5) This section does not apply to emergency rules.

AB389, s. 10 Section 10. 227.137 (title) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,9,12 227.137 (title) Economic impact analyses reports of proposed rules.

AB389, s. 11 Section 11. 227.137 (1) of the statutes is created to read:

AB389,9,16 227.137 (1) In this section, "agency" means the departments of agriculture, trade, and consumer protection; safety and professional services; natural resources; transportation; and workforce development.

AB389, s. 12 Section 12. 227.137 (2) of the statutes, as affected by 2011 Wisconsin Act 21, is renumbered 227.137 (2) (intro.) and amended to read:

AB389,9,25 227.137 (2) (intro.) An After an agency publishes a statement of the scope of a proposed rule under s. 227.135, and before the agency submits the proposed rule to the legislature for review under s. 227.19 (2), a municipality, an association that represents a farm, labor, business, or professional group, or 5 or more persons who would be directly and uniquely affected by the proposed rule may submit a petition to the department of administration asking the secretary of administration to direct the agency to prepare an economic impact report for the proposed rule. If the secretary of administration directs the agency to prepare an economic impact report for a proposed rule, the agency shall prepare an the economic impact analysis for a proposed rule report before submitting the proposed rule to the legislative council staff under s. 227.15. legislature for review under s. 227.19 (2). The secretary of administration shall direct an agency to prepare an economic impact report for a proposed rule before submitting the proposed rule to the legislature for review under s. 227.19 (2) if the secretary determines that all of the following apply:

AB389, s. 13 Section 13. 227.137 (2) (a) and (b) of the statutes are created to read:

AB389,10,12 227.137 (2) (a) The petition was submitted to the department of administration no later than 90 days after publication of the statement of the scope of the proposed rule under s. 227.135 (3) or no later than 10 days after publication of the notice for a public hearing under s. 227.17, whichever is later.

AB389,10,17 (b) The proposed rule would cost affected persons $20,000,000 or more during each of the first 5 years after the rule's implementation to comply with the rule or the proposed rule would adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.

AB389, s. 14 Section 14. 227.137 (3) (intro.) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,11,7 227.137 (3) (intro.) An economic impact analysis report 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 report, the agency shall solicit information and advice from the Wisconsin Economic Development Corporation and 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 report from other state agencies and from businesses, associations, local governmental units, and individuals and from other agencies. The economic impact analysis report shall include all of the following:

AB389, s. 15 Section 15. 227.137 (3) (a) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,11,15 227.137 (3) (a) An analysis and quantification of the policy problem, including any risks to public health or the environment, 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.

AB389, s. 16 Section 16. 227.137 (3) (b) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,11,22 227.137 (3) (b) 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 state, businesses, local governmental units, and affected individuals that may be affected by the proposed rule.

AB389, s. 17 Section 17. 227.137 (3) (c) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,12,4 227.137 (3) (c) 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 how the rule reduces the risks and addresses the problems that the rule is intended to address.

AB389, s. 18 Section 18. 227.137 (3) (d) of the statutes, as created by 2011 Wisconsin Act 21, is repealed.

AB389, s. 19 Section 19. 227.137 (3) (e) of the statutes, as created by 2011 Wisconsin Act 21, is repealed.

AB389, s. 20 Section 20. 227.137 (3) (f) of the statutes, as created by 2011 Wisconsin Act 32, is repealed.

AB389, s. 21 Section 21. 227.137 (4) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,13,2 227.137 (4) On the same day that the agency submits the economic impact analysis to the legislative council staff under s. 227.15 (1), the The agency shall also submit that analysis the economic impact report to the legislative council staff under s. 227.15 (1), 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 and to the petitioner.

AB389, s. 22 Section 22. 227.137 (5) of the statutes is renumbered 227.137 (8).

AB389, s. 23 Section 23. 227.137 (6) (intro.) of the statutes, as affected by 2011 Wisconsin Act 21, is renumbered 227.137 (6) (a) (intro.) and amended to read:

AB389,13,14 227.137 (6) (a) (intro.) If an economic impact analysis report 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 is prepared under sub. (2), 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:

AB389, s. 24 Section 24. 227.137 (6) (a) of the statutes, as affected by 2011 Wisconsin Act 21, is renumbered 227.137 (6) (a) 1. and amended to read:

AB389,13,19 227.137 (6) (a) 1. That the economic impact report and the analysis is required under sub. (3) are supported by related documentation contained or referenced in the economic impact analysis report.

AB389, s. 25 Section 25. 227.137 (6) (b) of the statutes, as affected by 2011 Wisconsin Act 21, is renumbered 227.137 (6) (a) 2.

AB389, s. 26 Section 26. 227.137 (6) (c) of the statutes, as affected by 2011 Wisconsin Act 21, is renumbered 227.137 (6) (a) 3.

AB389, s. 27 Section 27. 227.137 (6) (cm) of the statutes is created to read:

AB389,14,2 227.137 (6) (cm) No person is entitled to judicial review of any action taken by the department of administration under this subsection.

AB389, s. 28 Section 28. 227.137 (6) (d) of the statutes, as affected by 2011 Wisconsin Act 21, is renumbered 227.137 (6) (a) 4.

AB389, s. 29 Section 29. 227.137 (7) of the statutes, as affected by 2011 Wisconsin Act 21, is renumbered 227.137 (6) (bm) and amended to read:

AB389,14,13 227.137 (6) (bm) Before issuing a report under sub. (6) par. (a), 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.

AB389, s. 30 Section 30. 227.14 (2) (a) 6. of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,14,19 227.14 (2) (a) 6. Any analysis and supporting documentation that the agency used in support of the agency's determination of the rule's effect on small businesses under s. 227.114 or that was used when the agency prepared an economic impact analysis report under s. 227.137 (3).

AB389, s. 31 Section 31. 227.15 (1) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,15,8 227.15 (1) Submittal to legislative council staff. Prior to a public hearing on a proposed rule or, if no public hearing is required, prior to notice under s. 227.19, an agency shall submit the proposed rule to the legislative council staff for review. The proposed rule shall be in the form required under s. 227.14 (1), and shall include the material required under s. 227.14 (2), (3), and (4), the economic impact analysis required under s. 227.137 (2), and any revised economic impact analysis required under s. 227.137 (4). An agency may not hold a public hearing on a proposed rule or give notice under s. 227.19 until after it has received a written report of the legislative council staff review of the proposed rule or until after the initial review period of 20 working days under sub. (2) (intro.), whichever comes first. An agency may give notice of a public hearing prior to receipt of the legislative council staff report. This subsection does not apply to rules promulgated under s. 227.24.

AB389, s. 32 Section 32. 227.15 (1m) (bm) of the statutes, as created by 2011 Wisconsin Act 21, is repealed.

AB389, s. 33 Section 33. 227.17 (3) (em) of the statutes, as created by 2011 Wisconsin Act 21, is repealed.

AB389, s. 34 Section 34. 227.185 of the statutes, as created by 2011 Wisconsin Act 21, is repealed.

AB389, s. 35 Section 35. 227.19 (2) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

AB389,16,6 227.19 (2) Notification of legislature. An agency shall submit a notice to the chief clerk of each house of the legislature when a proposed rule is in final draft form. The notice shall be submitted in triplicate and shall be accompanied by a report in the form specified under sub. (3). A notice received under this subsection on or after the last day of the legislature's final general-business floorperiod in the biennial session as established in the joint resolution required under s. 13.02 (3) September 1 of an even-numbered year shall be considered received on the first day of the next regular session of the legislature, unless the presiding officers of both houses direct referral of the notice and report under this subsection before that day. The presiding officer of each house of the legislature shall, within 10 working days following the day on which the notice and report are received, direct the appropriate chief clerk to refer the notice and report to one standing committee. The agency shall submit to the legislative reference bureau for publication in the register a statement that a proposed rule has been submitted to the chief clerk of each house of the legislature. Each chief clerk shall enter a similar statement in the journal of his or her house.

AB389, s. 36 Section 36. 227.19 (3) (intro.) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read: