JR1 AB8: Bill Text

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

3. A determination made in consultation with the businesses 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.

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.

In addition, the bill requires all of the following:

1. An agency to submit an economic impact statement not only to the legislative council staff and DOA as under current law but also to the governor and to the chief clerk of each house of the legislature for distribution to the presiding officers of each house, the chairpersons of the appropriate standing committees of each house, and the cochairpersons of the Joint Committee for Review of Administrative Rules (JCRAR).

2. DOA to issue a report on a proposed rule, and the 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.

3. 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.

4. The legislative council staff to provide on its Internet site an economic impact analysis submitted to the legislative council staff or a link to that analysis.

5. A notice of a public hearing on a proposed rule to include the economic impact analysis for the proposed rule and any report on the proposed rule prepared by DOA, or a summary of that analysis and report and a description of how the full analysis and report may be obtained from the agency at no charge.

6. An agency to prepare an economic impact analysis for a proposed emergency rule and to submit that analysis to DOA, to the governor, and to the chief clerks of each house of the legislature for distribution to the presiding officers of each house, to the chairpersons of the appropriate standing committees of each house, and to the cochairpersons of JCRAR. 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 emergency rule, DOA must review the proposed rule and issue a report, and the agency may not file the proposed emergency rule with the LRB until the agency receives a copy of that report and the approval of the secretary.

Venue in judicial review actions and in actions against state

Under current law, 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 Dane County. This bill permits a declaratory judgment action seeking judicial review of the validity of a rule to be brought in the county where the party asserting the invalidity of the rule resides or has its principal place of business.

Under current law, any civil action or special proceeding in which the state, a state board or commission, or a state officer, employee, or agent acting in his or her official capacity is the sole defendant, is venued in Dane County. Under the bill, those actions are venued in the county where the plaintiff resides unless a different venue is specifically authorized by law. Under the bill, if a plaintiff is not a resident of the state or is not a natural person, the action is venued in the county where the dispute arose.

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:

AB8, s. 1 Section 1. 227.10 (2m) of the statutes is created to read:

AB8,6,7 227.10 (2m) No agency may implement or enforce any standard, requirement, or threshold as a term or condition of any license issued by the agency unless such implementation or enforcement is expressly required or permitted by statute or by a rule that has been promulgated in accordance with this subchapter. The governor, by executive order, may prescribe standards to ensure that rules are promulgated in compliance with this subchapter.

AB8, s. 2 Section 2. 227.11 (2) (a) of the statutes is renumbered 227.11 (2) (a) (intro.) and amended to read:

AB8,6,15 227.11 (2) (a) (intro.) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if it 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:

AB8, s. 3 Section 3. 227.11 (2) (a) 1. to 3. of the statutes are created to read:

AB8,7,6 227.11 (2) (a) 1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is expressly conferred on the agency by the legislature.

AB8,7,10 2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is expressly conferred on the agency by the legislature.

AB8,7,15 3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.

AB8, s. 4 Section 4. 227.135 (2) of the statutes is amended to read:

AB8,8,10 227.135 (2) Until 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 a the proposed rule approves a statement of the scope of the proposed rule, a state employee or official may not perform any activity in connection with drafting the proposed rule except for an activity necessary to prepare the statement 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 a the statement until at least 10 days after publication of the statement in the register as required 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.

AB8, s. 5 Section 5. 227.135 (3) of the statutes is amended to read:

AB8,8,16 227.135 (3) The agency shall send the If the governor approves a statement of the scope of a proposed rule under sub. (2), 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.

AB8, s. 6 Section 6. 227.135 (4) of the statutes is repealed and recreated to read:

AB8,9,3 227.135 (4) 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) and (2). 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.

AB8, s. 7 Section 7. 227.137 (title) of the statutes is amended to read:

AB8,9,5 227.137 (title) Economic impact reports analyses of proposed rules.

AB8, s. 8 Section 8. 227.137 (1) of the statutes is repealed.

AB8, s. 9 Section 9. 227.137 (2) (intro.) of the statutes is renumbered 227.137 (2) and amended to read:

AB8,9,24 227.137 (2) 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 that would be directly and uniquely affected by the proposed rule may submit a petition to the department of administration asking that the secretary of administration direct the agency to prepare an economic impact report for the proposed rule. The An agency shall prepare an economic impact report analysis for a proposed rule before submitting the proposed rule to the legislature for review under s. 227.19 (2) if the secretary of administration directs the agency to prepare that report. The secretary of administration may direct the agency to prepare an economic impact report for the proposed rule before submitting the proposed rule to the legislature for review under s. 227.19 (2). The secretary of administration shall direct the agency to prepare an economic impact report for the 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: legislative council staff under s. 227.15.

AB8, s. 10 Section 10. 227.137 (2) (a) of the statutes is repealed.

AB8, s. 11 Section 11. 227.137 (2) (b) of the statutes is repealed.

AB8, s. 12 Section 12. 227.137 (3) (intro.) of the statutes is amended to read:

AB8,10,13 227.137 (3) (intro.) An economic impact report analysis of a proposed rule shall contain information on the economic effect of the proposed rule on specific businesses, business sectors, public utility ratepayers, and the state's economy as a whole. When preparing the report analysis, the agency shall solicit information and advice from the department of commerce, and from governmental units, associations, businesses, associations representing businesses, local governmental units, and individuals that may be affected by the proposed rule. The agency may request information that is reasonably necessary for the preparation of an economic impact report analysis from other state agencies, governmental units, associations, businesses, associations, local governmental units, and individuals and from other agencies. The economic impact report shall include all of the following:

AB8, s. 13 Section 13. 227.137 (3) (a) of the statutes is amended to read:

AB8,10,20 227.137 (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.

AB8, s. 14 Section 14. 227.137 (3) (b) of the statutes is amended to read:

AB8,11,2 227.137 (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 the state, governmental units, associations, or passed along to the businesses, and affected individuals that may be affected by the proposed rule.

AB8, s. 15 Section 15. 227.137 (3) (c) of the statutes is amended to read:

AB8,11,7 227.137 (3) (c) An analysis of the actual and quantifiable benefits of the proposed rule, including how the rule reduces the risks and addresses the problems an assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.

AB8, s. 16 Section 16. 227.137 (3) (d) of the statutes is created to read:

AB8,11,10 227.137 (3) (d) An analysis of alternatives to the proposed rule, including the alternative of not promulgating the proposed rule.

AB8, s. 17 Section 17. 227.137 (3) (e) of the statutes is created to read:

AB8,11,15 227.137 (3) (e) A determination made in consultation with the businesses 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.

AB8, s. 18 Section 18. 227.137 (4) of the statutes is amended to read:

AB8,12,4 227.137 (4) The On the same day that the agency shall submit submits the economic impact report analysis to the legislative council staff, under s. 227.15 (1), the agency shall also submit that analysis to the department of administration, and to the petitioner 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.

AB8, s. 19 Section 19. 227.137 (5) of the statutes is repealed.

AB8, s. 20 Section 20. 227.138 (title) and (1) of the statutes are repealed.

AB8, s. 21 Section 21. 227.138 (2) (intro.) of the statutes is renumbered 227.137 (6) (intro.) and amended to read:

AB8,12,17 227.137 (6) (intro.) If an economic impact report will be prepared under s. 227.137 (2) 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 and individuals as a result of the proposed rule, the department of administration shall review the proposed rule and issue a report. The agency shall 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:

AB8, s. 22 Section 22. 227.138 (2) (a) of the statutes is renumbered 227.138 (6) (a) and amended to read:

AB8,12,22 227.138 (6) (a) That the economic impact report and the analysis required under s. 227.137 (3) are is supported by related documentation contained or referenced in the economic impact report analysis.

AB8, s. 23 Section 23. 227.138 (2) (b) of the statutes is renumbered 227.137 (6) (b).

AB8, s. 24 Section 24. 227.138 (2) (c) of the statutes is renumbered 227.137 (6) (c).

AB8, s. 25 Section 25. 227.138 (2) (d) of the statutes is renumbered 227.137 (6) (d).

AB8, s. 26 Section 26. 227.138 (3) of the statutes is renumbered 227.137 (7) and amended to read:

AB8,13,9 227.137 (7) Before issuing a report under sub. (2) (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.

AB8, s. 27 Section 27. 227.138 (4) of the statutes is repealed.

AB8, s. 28 Section 28. 227.14 (2) (a) 6. of the statutes is amended to read:

AB8,13,15 227.14 (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 report analysis under s. 227.137 (3).

AB8, s. 29 Section 29. 227.15 (1) of the statutes is amended to read:

AB8,14,2 227.15 (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) to (4), (3), and (4) and the economic impact analysis required under s. 227.137 (2). 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.

AB8, s. 30 Section 30. 227.15 (1m) (bm) of the statutes is created to read:

AB8,14,4 227.15 (1m) (bm) The economic impact analysis required under s. 227.137 (2).

AB8, s. 31 Section 31. 227.17 (3) (em) of the statutes is created to read:

AB8,14,9 227.17 (3) (em) The economic impact analysis required under s. 227.137 (2) and any report prepared by the department of administration under s. 227.137 (6), or a summary of that analysis and report and a description of how a copy of the full analysis and report may be obtained from the agency at no charge.

AB8, s. 32 Section 32. 227.185 of the statutes is created to read:

AB8,14,18 227.185 Approval by governor. After a proposed rule is in final draft form, the agency shall submit the proposed rule to the governor for approval. The governor, in his or her discretion, may approve, modify, or reject the proposed rule. If the governor approves a proposed rule, the governor shall provide the agency with a written notice of that approval. No proposed rule may be submitted to the legislature for review under s. 227.19 (2) or filed with the legislative reference bureau under s. 227.20 for publication under s. 227.21 unless the governor has approved the proposed rule in writing.

AB8, s. 33 Section 33. 227.19 (3) (intro.) of the statutes is amended to read:

AB8,15,2 227.19 (3) Form of report. (intro.) The report required under sub. (2) shall be in writing and shall include the proposed rule in the form specified in s. 227.14 (1), the material specified in s. 227.14 (2) to, (3), and (4), a copy of any economic impact report analysis prepared by the agency under s. 227.137 (2), a copy of any report prepared by the department of administration under s. 227.138 227.137 (6), a copy of any energy impact report received from the public service commission under s. 227.117 (2), and a copy of any recommendations of the legislative council staff. The report shall also include all of the following:

AB8, s. 34 Section 34. 227.24 (1) (e) 1. of the statutes is renumbered 227.24 (1) (e) 1m.

AB8, s. 35 Section 35. 227.24 (1) (e) 1d. of the statutes is created to read:

AB8,15,12 227.24 (1) (e) 1d. Prepare a statement of the scope of the proposed emergency rule as provided in s. 227.135 (1), obtain approval of the statement as provided in s. 227.135 (2), and send the statement to the legislative reference bureau for publication in the register under s. 227.135 (3) at the same time that the proposed emergency rule is published. If the agency changes the scope of a proposed emergency rule as described in s. 227.135 (4), the agency shall prepare and obtain approval of a revised statement of the scope of the proposed emergency rule as provided in s. 227.135 (4).

AB8, s. 36 Section 36. 227.24 (1) (e) 1g. of the statutes is created to read:

AB8,15,16 227.24 (1) (e) 1g. Submit the proposed emergency rule in final draft form to the governor for approval as provided in s. 227.185. An agency may not file an emergency rule for publication until the governor approves the emergency rule in writing.

AB8, s. 37 Section 37. 227.24 (3g) of the statutes is created to read:

AB8,16,7 227.24 (3g) Economic impact analysis. Before filing a proposed emergency rule under sub. (3), an agency shall prepare an economic impact analysis for the proposed emergency rule in the manner required under s. 227.137 (3) and shall 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 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 emergency rule, the department of administration shall review the proposed rule and issue a report under s. 227.137 (6). The agency may not file the proposed emergency rule until the agency receives a copy of the department of administration's report and the approval of the secretary of administration under s. 227.137 (7).

AB8, s. 38 Section 38. 227.40 (1) of the statutes is amended to read:

AB8,16,24 227.40 (1) Except as provided in sub. (2), the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such 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 circuit court for Dane County. The officer, board, commission or other agency whose rule is involved shall be the party defendant. The summons in such the action shall be served as provided in s. 801.11 (3) and by delivering a copy to such that officer or, if the agency is composed of more than one person, to the secretary or clerk of the agency where composed of more than one person or to any member of such the agency. The court shall render a declaratory judgment in such the action only when it appears from the complaint and the supporting evidence that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule in question.

AB8, s. 39 Section 39. 801.50 (3) of the statutes is amended to read:

AB8,17,5 801.50 (3) All actions in which the sole defendant is the state, any state board or commission or any state officer, employee or agent in an official capacity shall be venued in Dane County the county where the plaintiff resides unless another venue is specifically authorized by law. If the plaintiff is a nonresident or is not a natural person, the action shall be venued in the county where the dispute arose.

AB8, s. 9309 Section 9309. Initial applicability; Circuit Courts.

AB8,17,9 (1) Venue in declaratory judgment actions. The treatment of section 227.40 (1) of the statutes first applies to an action for declaratory judgment commenced on the effective date of this subsection.