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January 2011 Special Session
2011 - 2012 LEGISLATURE
January 18, 2011 - Introduced by Committee on Assembly Organization, by
request of Governor Scott Walker and Representative Tiffany. Referred to
Committee on Judiciary and Ethics.
AB8,2,3 1An Act to repeal 227.137 (1), 227.137 (2) (a), 227.137 (2) (b), 227.137 (5), 227.138
2(title) and (1) and 227.138 (4); to renumber 227.138 (2) (b), 227.138 (2) (c),
3227.138 (2) (d) and 227.24 (1) (e) 1.; to renumber and amend 227.11 (2) (a),
4227.137 (2) (intro.), 227.138 (2) (intro.), 227.138 (2) (a) and 227.138 (3); to
5amend
227.135 (2), 227.135 (3), 227.137 (title), 227.137 (3) (intro.), 227.137 (3)
6(a), 227.137 (3) (b), 227.137 (3) (c), 227.137 (4), 227.14 (2) (a) 6., 227.15 (1),
7227.19 (3) (intro.), 227.40 (1) and 801.50 (3); to repeal and recreate 227.135
8(4); and to create 227.10 (2m), 227.11 (2) (a) 1. to 3., 227.137 (3) (d), 227.137 (3)
9(e), 227.15 (1m) (bm), 227.17 (3) (em), 227.185, 227.24 (1) (e) 1d., 227.24 (1) (e)
101g. and 227.24 (3g) of the statutes; relating to: the authority of a state agency
11to promulgate rules interpreting the provisions of a statute enforced or
12administered by the agency and to implement or enforce any standard,
13requirement, or threshold as a term or condition of a license issued by the state
14agency; gubernatorial approval of proposed administrative rules; economic

1impact analyses of proposed rules and emergency rules; and venue in a
2declaratory judgment action seeking judicial review of the validity of an
3administrative rule and in an action in which the sole defendant is the state.
Analysis by the Legislative Reference Bureau
Introduction
This bill makes various changes relating to 1) the authority of a state agency
(agency) to promulgate administrative rules (rules) interpreting the provisions of a
statute enforced or administered by the agency and to implement or enforce any
standard, requirement, or threshold as a term or condition of a license issued by the
agency; 2) gubernatorial approval of proposed rules; 3) economic impact analyses for
proposed rules; and 4) venue in declaratory judgment actions seeking judicial review
of the validity of a rule and in actions in which the sole defendant is the state.
Agency authority to promulgate rules and implement standards
Under current law, an 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, except that a rule is not valid if the
rule exceeds the bounds of correct interpretation.
This bill provides that all of the following apply to the promulgation of a rule
interpreting the provisions of a statute enforced or administered by an agency:
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.
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.
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.
The bill also prohibits an agency from implementing or enforcing 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 statutory
rule-making procedures. In addition, the bill permits the governor, by executive
order, to prescribe standards to ensure that rules are promulgated in compliance
with the subchapter of the statutes governing rule making.

Gubernatorial approval of proposed rules
Current law requires an agency that is planning to promulgate a rule to prepare
a statement of the scope of the proposed rule (statement of scope), present the
statement of scope to the individual or body with policy-making powers over the
subject matter of the proposed rule (policy-making individual or body) for approval,
and send the statement of scope to the Legislative Reference Bureau (LRB) for
publication in the Wisconsin Administrative Register (register). Currently, the
policy-making individual or body may not approve a statement of scope until at least
tenth days after publication of the statement of scope in the register. Current law
also provides that if the policy-making individual or body does not disapprove the
statement of scope within 30 days after it is presented to that individual or body, or
by the eleventh day after its publication in the register, whichever is later, the
statement is considered to be approved. Finally, current law prohibits a state
employee or official from performing any activity in connection with the drafting of
a proposed rule, except for an activity necessary to prepare the statement of scope,
until the policy-making individual or body approves the statement of scope.
This bill makes the following changes with respect to statements of scope:
1. Requires a statement of scope to be approved by the governor as well as by
the policy-making individual or body before the statement of scope may be sent to
the LRB for publication in the register and prohibits a state employee or official from
performing any activity in connection with the drafting of a proposed rule, except for
an activity necessary to prepare the statement of scope, until the governor as well
as the policy-making individual or body approves the statement of scope.
2. Eliminates automatic approval of a statement of scope if the policy-making
individual or body does not disapprove the statement of scope within 30 days after
it is presented to that individual or body, or by the eleventh day after its publication
in the register, whichever is later.
3. Requires 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.
4. Requires 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. A statement of scope for a proposed
emergency rule must be published at the same time that the emergency rule is
published. If the agency changes the scope of a proposed emergency rule, the agency
must prepare and obtain approval of a revised statement of scope for the proposed
emergency rule in the same manner as a revised statement of scope is prepared and
approved for a nonemergency rule.
In addition, the bill requires 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 or filed with the LRB for publication 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 LRB for publication.

Economic impact analyses for proposed rules
Under current law, before the Department of Agriculture, Trade and Consumer
Protection (DATCP), the Department of Commerce (Commerce), the Department of
Natural Resources (DNR), the Department of Transportation (DOT), or the
Department of Workforce Development (DWD) may submit a proposed rule to the
legislature for review, a municipality, an association that represents a farm, labor,
business, or professional group, or five or more persons that would be affected by the
proposed rule may submit a petition to the Department of Administration (DOA)
requesting the secretary of administration (secretary) to direct DATCP, Commerce,
DNR, DOT, or DWD to prepare an economic impact report for the proposed rule. The
secretary may direct the preparation of an economic impact report in any case and
must 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. An economic impact report, however, is not required for an
emergency rule.
An economic impact report must contain information on the effect of the
proposed rule on specific businesses, business sectors, and the state's economy and
must 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. The agency must submit the economic impact report
to the legislative council staff and DOA and may not submit the proposed rule to the
legislature until DOA has issued a report on the proposed rule and the secretary has
approved the proposed rule.
This bill requires any state agency to prepare an economic impact analysis,
rather than a report, before the agency may submit any proposed rule to the
legislative council staff for review, which must be done before a public hearing is held
on the proposed rule or, if no public hearing is held, before the proposed rule is
submitted to the legislature for review. The bill also requires an economic impact
analysis to be prepared before a proposed emergency rule is filed with the LRB,
which must be done before the emergency rule becomes valid.
The bill also requires certain additional information to be included in an
economic impact analysis. Specifically, in addition to the information that must be
included in an economic impact report under current law, an economic impact
analysis must also include:
1. Information on the effect of a proposed rule on public utility ratepayers.
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 1Section 1. 227.10 (2m) of the statutes is created to read:
AB8,6,72 227.10 (2m) No agency may implement or enforce any standard, requirement,
3or threshold as a term or condition of any license issued by the agency unless such
4implementation or enforcement is expressly required or permitted by statute or by
5a rule that has been promulgated in accordance with this subchapter. The governor,
6by executive order, may prescribe standards to ensure that rules are promulgated in
7compliance with this subchapter.
AB8, s. 2 8Section 2. 227.11 (2) (a) of the statutes is renumbered 227.11 (2) (a) (intro.) and
9amended to read:
AB8,6,1510 227.11 (2) (a) (intro.) Each agency may promulgate rules interpreting the
11provisions of any statute enforced or administered by it the agency, if the agency
12considers it necessary to effectuate the purpose of the statute, but a rule is not valid
13if it the rule exceeds the bounds of correct interpretation. All of the following apply
14to the promulgation of a rule interpreting the provisions of a statute enforced or
15administered by an agency:
AB8, s. 3
1Section 3. 227.11 (2) (a) 1. to 3. of the statutes are created to read:
AB8,7,62 227.11 (2) (a) 1. A statutory or nonstatutory provision containing a statement
3or declaration of legislative intent, purpose, findings, or policy does not confer
4rule-making authority on the agency or augment the agency's rule-making
5authority beyond the rule-making authority that is expressly conferred on the
6agency by the legislature.
AB8,7,107 2. A statutory provision describing the agency's general powers or duties does
8not confer rule-making authority on the agency or augment the agency's
9rule-making authority beyond the rule-making authority that is expressly
10conferred on the agency by the legislature.
AB8,7,1511 3. A statutory provision containing a specific standard, requirement, or
12threshold does not confer on the agency the authority to promulgate, enforce, or
13administer a rule that contains a standard, requirement, or threshold that is more
14restrictive than the standard, requirement, or threshold contained in the statutory
15provision.
AB8, s. 4 16Section 4. 227.135 (2) of the statutes is amended to read:
AB8,8,1017 227.135 (2) Until An agency that has prepared a statement of the scope of the
18proposed rule shall present the statement to the governor and to
the individual or
19body with policy-making powers over the subject matter of a the proposed rule
20approves a statement of the scope of the proposed rule, a state employee or official
21may not perform any activity in connection with drafting the proposed rule except
22for an activity necessary to prepare the statement
for approval. The agency may not
23send the statement to the legislative reference bureau for publication under sub. (3)
24until the governor issues a written notice of approval of the statement
. The
25individual or body with policy-making powers may not approve a the statement

1until at least 10 days after publication of the statement in the register as required
2under sub. (3). If the individual or body with policy-making powers does not
3disapprove the statement within 30 days after the statement is presented to the
4individual or body, or by the 11th day after publication of the statement in the
5register, whichever is later, the statement is considered to be approved
No state
6employee or official may perform any activity in connection with the drafting of a
7proposed rule except for an activity necessary to prepare the statement of the scope
8of the proposed rule until the governor and the individual or body with
9policy-making powers over the subject matter of the proposed rule approves the
10statement
.
AB8, s. 5 11Section 5. 227.135 (3) of the statutes is amended to read:
AB8,8,1612 227.135 (3) The agency shall send the If the governor approves a statement of
13the scope of a proposed rule under sub. (2), the agency shall send the statement to
14the legislative reference bureau for publication in the register. On the same day that
15the agency sends the statement to the legislative reference bureau, the agency shall
16send a copy of the statement to the secretary of administration.
AB8, s. 6 17Section 6. 227.135 (4) of the statutes is repealed and recreated to read:
AB8,9,318 227.135 (4) If at any time after a statement of the scope of a proposed rule is
19approved under sub. (2) the agency changes the scope of the proposed rule in any
20meaningful or measurable way, including changing the scope of the proposed rule so
21as to include in the scope any activity, business, material, or product that is not
22specifically included in the original scope of the proposed rule, the agency shall
23prepare and obtain approval of a revised statement of the scope of the proposed rule
24in the same manner as the original statement was prepared and approved under
25subs. (1) and (2). No state employee or official may perform any activity in connection

1with the drafting of the proposed rule except for an activity necessary to prepare the
2revised statement of the scope of the proposed rule until the revised statement is so
3approved.
AB8, s. 7 4Section 7. 227.137 (title) of the statutes is amended to read:
AB8,9,5 5227.137 (title) Economic impact reports analyses of proposed rules.
AB8, s. 8 6Section 8. 227.137 (1) of the statutes is repealed.
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