AB1070: Bill Text

AB1070,27,4 (b) “Guidance document" does not include any of the following:

AB1070,27,6 1. A rule that has been promulgated and that is currently in effect or a proposed rule that is in the process of being promulgated.

AB1070,27,10 2. A standard adopted, or a statement of policy or interpretation made, whether preliminary or final, in the decision of a contested case, in a private letter ruling under s. 73.035, or in an agency decision upon or disposition of a particular matter as applied to a specific set of facts.

AB1070,27,14 3. Any document or activity described in sub. (13) (a) to (zz), except that “guidance document" includes a pamphlet or other explanatory material described under sub. (13) (r) that otherwise satisfies the definition of “guidance document" under par. (a).

AB1070,27,16 4. Any document that any statute specifically provides is not required to be promulgated as a rule.

AB1070,27,17 5. A declaratory ruling issued under s. 227.41.

AB1070,27,18 6. A pleading or brief filed in court by the state, an agency, or an agency official.

AB1070,27,21 7. A letter or written legal advice of the department of justice or a formal or informal opinion of the attorney general, including an opinion issued under s. 165.015 (1).

AB1070,27,23 8. Any document or communication for which a procedure for public input, other than that provided under s. 227.112 (1), is provided by law.

AB1070,27,25 9. Any document or communication that is not subject to the right of inspection and copying under s. 19.35 (1).

AB1070,32 Section 32. 227.01 (13) (intro.) of the statutes is amended to read:

AB1070,28,9 227.01 (13) (intro.) “Rule" means a regulation, standard, statement of policy, or general order of general application which that has the effect force of law and which that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency. “Rule" includes a modification of a rule under s. 227.265. “Rule" does not include, and s. 227.10 does not apply to, any action or inaction of an agency, whether it would otherwise meet the definition under this subsection, which that:

AB1070,33 Section 33 . 227.05 of the statutes is created to read:

AB1070,28,16 227.05 Agency publications. An agency shall identify the applicable provision of federal law or the applicable state statutory or administrative code provision that supports any statement or interpretation of law that the agency makes in any publication, whether in print or on the agency's Internet site, including guidance documents, forms, pamphlets, or other informational materials, regarding the laws the agency administers.

AB1070,34 Section 34 . Subchapter II (title) of chapter 227 [precedes 227.10] of the statutes is amended to read:

AB1070,28,19 Chapter 227

AB1070,28,20 Subchapter II

AB1070,28,22 ADMINISTRATIVE RULES and GUIDANCE DOCUMENTS

AB1070,35 Section 35 . 227.10 (2g) of the statutes is created to read:

AB1070,28,25 227.10 (2g) No agency may seek deference in any proceeding based on the agency's interpretation of any law.

AB1070,36 Section 36. 227.11 (title) of the statutes is amended to read:

AB1070,29,3 227.11 (title) Extent to which chapter confers Agency rule-making authority.

AB1070,37 Section 37 . 227.11 (3) of the statutes is created to read:

AB1070,29,10 227.11 (3) (a) A plan that is submitted to the federal government for the purpose of complying with a requirement of federal law does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. No agency may agree to promulgate a rule as a component of a compliance plan unless the agency has explicit statutory authority to promulgate the rule at the time the compliance plan is submitted.

AB1070,29,16 (b) A settlement agreement, consent decree, or court order does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. No agency may agree to promulgate a rule as a term in any settlement agreement, consent decree, or stipulated order of a court unless the agency has explicit statutory authority to promulgate the rule at the time the settlement agreement, consent decree, or stipulated order of a court is executed.

AB1070,38 Section 38 . 227.112 of the statutes is created to read:

AB1070,29,23 227.112 Guidance documents. (1) (a) Before adopting a guidance document, an agency shall submit to the legislative reference bureau the proposed guidance document with a notice of a public comment period on the proposed guidance document under par. (b), in a format approved by the legislative reference bureau, for publication in the register. The notice shall specify the place where comments should be submitted and the deadline for submitting those comments.

AB1070,30,6 (b) The agency shall provide for a period for public comment on a proposed guidance document submitted under par. (a), during which any person may submit written comments to the agency with respect to the proposed guidance document. Except as provided in par. (c), the period for public comment shall end no sooner than the 21st day after the date on which the proposed guidance document is published in the register under s. 35.93 (2) (b) 3. im. The agency may not adopt the proposed guidance document until the comment period has concluded and the agency has complied with par. (d).

AB1070,30,8 (c) An agency may hold a public comment period shorter than 21 days with the approval of the governor.

AB1070,30,12 (d) An agency shall retain all written comments submitted during the public comment period under par. (b) and shall consider those comments in determining whether to adopt the guidance document as originally proposed, modify the proposed guidance document, or take any other action.

AB1070,30,19 (2) An agency shall post each guidance document that the agency has adopted on the agency's Internet site and shall permit continuing public comment on the guidance document. The agency shall ensure that each guidance document that the agency has adopted remains on the agency's Internet site as provided in this subsection until the guidance document is no longer in effect, is no longer valid, or is superseded or until the agency otherwise rescinds its adoption of the guidance document.

AB1070,31,2 (3) A guidance document does not have the force of law and does not provide the authority for implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license. An agency that proposes to rely on a guidance document to the detriment of a person in any proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document. An agency may not use a guidance document to foreclose consideration of any issue raised in the guidance document.

AB1070,31,8 (4) If an agency proposes to act in any proceeding at variance with a position expressed in a guidance document, it shall provide a reasonable explanation for the variance. If an affected person in any proceeding may have relied reasonably on the agency's position, the explanation must include a reasonable justification for the agency's conclusion that the need for the variance outweighs the affected person's reliance interest.

AB1070,31,11 (5) Persons that qualify under s. 227.12 to petition an agency to promulgate a rule may, as provided in s. 227.12, petition an agency to promulgate a rule in place of a guidance document.

AB1070,31,21 (6) Any guidance document shall be signed by the secretary or head of the agency below the following certification: “I have reviewed this guidance document or proposed guidance document and I certify that it complies with sections 227.10 and 227.11 of the Wisconsin Statutes. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is not explicitly required or explicitly permitted by a statute or a rule that has been lawfully promulgated. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is more restrictive than a standard, requirement, or threshold contained in the Wisconsin Statutes.”

AB1070,32,2 (7) This section does not apply to guidance documents adopted before the first day of the 7th month beginning after the effective date of this subsection .... [LRB inserts date], but on that date any guidance document that has not been adopted in accordance with sub. (1) or that does not contain the certification required under sub. (6) shall be considered rescinded.

AB1070,32,5 (8) The legislative council staff shall provide agencies with assistance in determining whether documents and communications are guidance documents that are subject to the requirements under this section.

AB1070,39 Section 39 . 227.13 of the statutes is amended to read:

AB1070,32,14 227.13 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 also appoint a committee of experts, interested persons or representatives of the public to advise it with respect to any contemplated rule making. The Such a committee shall have advisory powers only. Whenever an agency appoints a committee under this section, the agency shall submit a list of the members of the committee to the joint committee for review of administrative rules.

AB1070,40 Section 40 . 227.135 (1) (g) of the statutes is created to read:

AB1070,32,19 227.135 (1) (g) A statement as to whether the agency anticipates that the proposed rule will have minimal or no economic impact, a moderate economic impact, or a significant economic impact, whether locally, statewide, or on a sector of the economy.

AB1070,41 Section 41 . 227.135 (1) (h) of the statutes is created to read:

AB1070,33,4 227.135 (1) (h) For a proposed emergency rule promulgated under s. 227.24, an explanation of why the rule is necessary for the preservation of the public peace, health, safety, or welfare. If the rule is exempt from the required finding of emergency, the statement of scope shall cite the act number and section or the statute section authorizing the promulgation of an emergency rule or a statement that the rule is promulgated at the direction of the joint committee for review of administrative rules under s. 227.26 (2) (b). The agency shall also include a statement as to whether the agency will promulgate a corresponding permanent rule and the agency's anticipated time line for promulgating the permanent rule.

AB1070,42 Section 42 . 227.135 (2) of the statutes is renumbered 227.135 (2) (a) 1. and amended to read:

AB1070,33,18 227.135 (2) (a) 1. An Except as provided in subd. 2., an agency that has prepared a statement of the scope of the proposed rule shall present the statement to the department of administration, which shall make a determination as to whether the agency has the explicit authority to promulgate the rule as proposed in the statement of scope and shall report the statement of scope and its determination to the governor who, in his or her discretion, may approve or reject the statement of scope. The Except as provided in subd. 2., 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 and may not, without the written approval of the governor, send the statement to the legislative reference bureau for publication under sub. (3) more than 30 days after the date of the governor's approval of the statement of scope.

AB1070,34,2 (b) The An agency that has prepared a statement of the scope of the proposed rule shall also present the statement to the individual or body with policy-making powers over the subject matter of the proposed rule for approval. 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) and, if a preliminary public hearing and comment period are held by the agency under s. 227.136, until the individual or body has received and reviewed any public comments and feedback received from the agency under s. 227.136 (5).

AB1070,34,9 (c) 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 has been approved as required under pars. (a) and (b). This subsection paragraph does not prohibit an agency from performing an activity necessary to prepare a petition and proposed rule for submission under s. 227.26 (4).

AB1070,43 Section 43 . 227.135 (2) (a) 2. of the statutes is created to read:

AB1070,34,12 227.135 (2) (a) 2. The requirement under subd. 1. does not apply to statements of scope prepared by the department of public instruction.

AB1070,44 Section 44 . 227.135 (3) of the statutes is amended to read:

AB1070,35,2 227.135 (3) If the governor approves a An agency that prepares a statement of the scope of a proposed rule under sub. (2), the agency (1) shall, subject to sub. (2) (a) 1., 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 and to the chief clerks of each house of the legislature, who shall distribute the statement to the cochairpersons of the joint committee for review of administrative rules. 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 if such approval is required under sub. (2) (a). 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, if required, in the publication of the statement of scope in the register.

AB1070,45 Section 45 . 227.135 (4) of the statutes is renumbered 227.135 (4) (a) (intro.) and amended to read:

AB1070,35,13 227.135 (4) (a) (intro.) 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 For purposes of this subsection, a meaningful or measurable change includes any of the following:

AB1070,35,18 (b) Whenever an agency is required to prepare a revised statement of scope under this subsection, 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 as provided in sub. (2).

AB1070,46 Section 46 . 227.135 (4) (a) 1. to 6. of the statutes are created to read:

AB1070,35,20 227.135 (4) (a) 1. A change to the objectives of the proposed rule.

AB1070,35,21 2. A change to the basis and purpose of the proposed rule.

AB1070,35,22 3. A change to the policies to be included in the proposed rule.

AB1070,35,23 4. A change to the entities affected by the proposed rule.

AB1070,35,25 5. A change to the overall breadth or scope of the regulation in the proposed rule.

AB1070,36,3 6. A change to 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 statement.

AB1070,47 Section 47 . 227.135 (6) of the statutes is created to read:

AB1070,36,7 227.135 (6) An agency that intends to concurrently promulgate an emergency rule and a permanent rule that are identical in substance may submit one statement of scope indicating this intent.

AB1070,48 Section 48 . 227.137 (2) of the statutes is amended to read:

AB1070,36,14 227.137 (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. Prior to preparing an economic impact analysis as provided in this subsection, the agency shall review the statement of scope for the proposed rule prepared under s. 227.135 to determine whether a revised statement of scope is required under s. 227.135 (4).

AB1070,49 Section 49. 227.137 (2m) of the statutes is created to read:

AB1070,36,19 227.137 (2m) An agency's economic impact analysis under sub. (2) or revised economic impact analysis under sub. (4) shall be prepared and submitted separately from any fiscal estimate or revised fiscal estimate prepared and submitted under s. 227.14 (4) (a) or (d).

AB1070,50 Section 50 . 227.137 (3) (e) of the statutes is renumbered 227.137 (3) (e) (intro.) and amended to read:

AB1070,37,2 227.137 (3) (e) (intro.) 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. The agency shall make the determination required under this paragraph by doing all of the following:

AB1070,51 Section 51 . 227.137 (3) (e) 1. to 4. of the statutes are created to read:

AB1070,37,5 227.137 (3) (e) 1. Compiling a list of affected persons and potential economic concerns identified in the comments solicited by the agency.

AB1070,37,6 2. Contacting affected persons to discuss economic concerns.

AB1070,37,7 3. Considering any raised concerns in drafting the economic impact analysis.

AB1070,37,10 4. Documenting in the economic impact analysis the persons who were consulted and whether the agency's determination is disputed by any of the affected persons.

AB1070,52 Section 52 . 227.137 (3m) of the statutes is created to read:

AB1070,37,23 227.137 (3m) (a) When soliciting comments under sub. (3) for an economic impact analysis, an agency shall accept comments for a period of at least 14 calendar days if, under s. 227.135 (1) (g), the statement of scope for the proposed rule indicates that the proposed rule will have minimal or no economic impact, at least 30 calendar days if it indicates a moderate economic impact, and at least 60 calendar days if it indicates a significant economic impact or if the agency anticipates that the proposed rule will result in $10,000,000 or more in implementation and compliance costs being incurred by or passed along to businesses, local governmental units, and individuals over any 2-year period. If the agency subsequently determines that the anticipated economic impact will be greater than indicated in the statement of scope, the agency shall adjust the comment period accordingly. An agency may not reduce a comment period once determined under this subsection.

AB1070,37,25 (b) This subsection does not apply to a person preparing an independent economic impact analysis under sub. (4m).

AB1070,53 Section 53. 227.137 (4) of the statutes is amended to read:

AB1070,38,19 227.137 (4) On the same day that the agency submits the economic impact analysis to the legislative council staff under s. 227.15 (1), the 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. For purposes of this subsection, a significant change includes an increase or a decrease of at least 10 percent or $50,000, whichever is greater, in the expected implementation and compliance costs reasonably expected to be incurred by or passed along to a majority of the businesses, local governmental units, and individuals as a result of the proposed rule, as identified under sub. (3) (b), or a significant change in the persons expected to be affected by the proposed rule. A revised economic impact analysis shall be prepared and submitted in the same manner as an original economic impact analysis is prepared and submitted.

AB1070,54 Section 54. 227.138 (1) (intro.) of the statutes is renumbered 227.138 (1) and amended to read:

AB1070,39,2 227.138 (1) The joint committee for review of administrative rules may direct an agency to prepare a retrospective economic impact analysis for any of an agency's rules that are published in the code. The committee may identify one or more specific chapters, sections, or other subunits in the code that are administered by the agency as the rules that are to be the subject of the analysis and may specify a deadline for the preparation of the analysis.

AB1070,39,14 (1r) A retrospective economic impact analysis shall contain information on the economic effect of the rules 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 or person preparing the analysis shall solicit information and advice from businesses, associations representing businesses, local governmental units, and individuals that have been affected by the rules. The agency or person shall prepare the retrospective economic impact analysis in coordination with local governmental units that have been affected by the rules. The agency or person may request information that is reasonably necessary for the preparation of a retrospective economic impact analysis from other businesses, associations, local governmental units, and individuals and from other agencies. The retrospective economic impact analysis shall include all of the following:

AB1070,55 Section 55 . 227.138 (1) (a) to (h) of the statutes are renumbered 227.138 (1r) (a) to (h).

AB1070,56 Section 56. 227.138 (1g) of the statutes is created to read:

AB1070,40,2 227.138 (1g) Within 90 days after an agency submits a retrospective economic impact analysis under sub. (2), either cochairperson of the joint committee for review of administrative rules may request an independent retrospective economic impact analysis to be prepared using the same procedure and payment methods described under s. 227.137 (4m) (am) and (b). A person preparing an independent retrospective economic impact analysis under this subsection shall prepare the independent retrospective economic impact analysis for the same rules that were the subject of the agency's analysis under sub. (1) and shall include the information that is required under sub. (1r).

AB1070,57 Section 57 . 227.138 (2) of the statutes is amended to read:

AB1070,40,13 227.138 (2) An agency or person that prepares a retrospective economic impact analysis under sub. (1) or (1g) 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. The agency or person shall also send an electronic copy of the analysis to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register.

AB1070,58 Section 58 . 227.18 (3m) of the statutes is created to read:

AB1070,40,16 227.18 (3m) If, after holding a hearing under this section, an agency makes any changes to the proposed rule, the agency shall do all of the following: