AB64: Bill Text

AB64,759,8 2. Provides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency, if that guidance or advice is likely to apply to a class of persons similarly affected.

AB64,759,9 (b) “Guidance document" does not include any of the following:

AB64,759,11 1. A rule or any document or communication that imposes any binding or enforceable legal requirement.

AB64,759,15 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.

AB64,759,19 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).

AB64,759,21 4. Any document that any statute specifically provides is not required to be promulgated as a rule.

AB64,759,22 5. A declaratory ruling issued under s. 227.41.

AB64,759,24 6. A formal or informal opinion of the attorney general, including an opinion issued under s. 165.015 (1).

AB64,760,2 7. A formal or informal advisory opinion issued by the elections commission under s. 5.05 (6a) or by the ethics commission under s. 19.46 (2).

AB64,760,4 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.

AB64,760,6 9. Any document or communication that is not subject to the right of inspection and copying under s. 19.35 (1).

AB64,1708 Section 1708 . 227.01 (13) (intro.) of the statutes is amended to read:

AB64,760,15 227.01 (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:

AB64,1709 Section 1709. 227.01 (13) (Lr) of the statutes is amended to read:

AB64,760,18 227.01 (13) (Lr) Determines what constitutes high-demand fields for purposes of s. 38.28 (2) (be) 1. b. (2m) (b) 2.

AB64,1710 Section 1710 . Subchapter II (title) of chapter 227 [precedes 227.10] of the statutes is amended to read:

AB64,760,21 Chapter 227

AB64,760,22 Subchapter II

AB64,760,24 ADMINISTRATIVE RULES and GUIDANCE DOCUMENTS

AB64,1711 Section 1711 . 227.111 of the statutes is created to read:

AB64,761,5 227.111 Rule-making authority of certain agencies. (1) In this section, “restricted agency” means an affiliated credentialing board, as defined in s. 15.01 (1g), a board, as defined in s. 15.01 (1r), a commission, as defined in s. 15.01 (2), or an examining board, as defined in s. 15.01 (7), that has not taken any action under this subchapter with respect to the promulgation of a rule in 10 years or more.

AB64,761,9 (2) Notwithstanding ss. 227.10 and 227.11 and any other provision authorizing or requiring a restricted agency to promulgate rules, a restricted agency may not take any action with respect to the promulgation of a rule unless a subsequent law specifically authorizes such action.

AB64,1712 Section 1712 . 227.112 of the statutes is created to read:

AB64,761,19 227.112 Guidance documents. (1) (a) Except as provided in par. (c), no less than 21 days before adopting a guidance document, an agency shall post the proposed guidance document on the agency's Internet site and, on the same date, submit a notice of the public comment period on the proposed guidance document under par. (b), including a copy of the proposed guidance document and the Web address of the agency's Internet site at which comments may be submitted, to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register. The notice need not be published in the register on the same day the agency posts the proposed guidance document on its Internet site.

AB64,761,25 (b) The agency shall provide for a period for public comment on a proposed guidance document posted 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 posted on the agency's Internet site.

AB64,762,3 (c) An agency may post a proposed guidance document less than 21 days before adopting the proposed guidance document and with a public comment period shorter than 21 days with the approval of the governor.

AB64,762,7 (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.

AB64,762,9 (e) This subsection does not apply to guidance documents adopted before the effective date of this paragraph .... [LRB inserts date].

AB64,762,16 (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.

AB64,763,2 (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. A guidance document that imposes a regulatory obligation or consequence is invalid, and the regulatory obligation or consequence may not be administered or enforced unless the agency promulgates it as a rule. An agency that proposes to rely on a guidance document to the detriment of a person in any administrative 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.

AB64,763,8 (4) If an agency proposes to act in an administrative 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 an administrative 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.

AB64,763,11 (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.

AB64,1713 Section 1713. 227.12 (4) of the statutes is amended to read:

AB64,764,8 227.12 (4) If a petition to the department of revenue establishes that the department has established a standard by which it is construing a state tax statute, but has not promulgated a rule to adopt the standard or published the standard in a manner that is available to the public, the department shall, as provided under s. 227.135, submit a statement of the scope of the proposed rule to the governor no later than 90 days after receiving the petition. No later than 270 days after the statement is approved by the governor, the department shall submit the proposed rule in final draft form to the governor for the governor's approval, as provided under s. 227.185 (1). At the department's request, the governor may, at any time prior to the expiration of any deadline specified in this subsection, extend the time for submitting the statement or proposed rule in draft form for any period not to exceed 60 days. The governor may grant more than one extension under this subsection, but the total period for all such extensions may not exceed 120 days. The rule need not adhere to the standard established by the department, but shall address the same circumstances as the standard addresses. If the department fails to comply with this subsection, any of the petitioners may commence an action in circuit court to compel the department's compliance. If an action is commenced under this subsection, the court may compel the department to provide information to the court related to the degree to which the department is enforcing the standard, except that the information provided by the department shall not disclose the identity of any person who is not a party to the action.

AB64,1714 Section 1714 . 227.132 of the statutes is created to read:

AB64,764,11 227.132 Duties of department of administration. The department of administration shall do all of the following:

AB64,764,14 (1) Provide training to agencies on appropriate data collection and methods of analysis for purposes of preparing economic impact analyses of proposed rules under s. 227.137 (3).

AB64,764,19 (2) Attend hearings of the joint committee for review of administrative rules and present testimony on proposed rules that the department determines will have an economic impact on specific businesses, business sectors, public utility ratepayers, local governmental units, regulated individuals and entities, or the state's economy as a whole.

AB64,764,21 (3) Review and approve economic impact analyses as provided under s. 227.137 (3m).

AB64,764,23 (4) Request independent economic impact analyses under s. 227.137 (4m) when appropriate.

AB64,1715 Section 1715 . 227.135 (1) (intro.) of the statutes is amended to read:

AB64,765,4 227.135 (1) (intro.) An agency shall prepare a statement of the scope of any rule that it plans to promulgate, which shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule. The statement shall include all of the following:

AB64,1716 Section 1716 . 227.135 (2) of the statutes is amended to read:

AB64,765,20 227.135 (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 who, in his or her discretion, may approve or reject the statement of scope. The agency may not send the statement to the legislative reference bureau for publication under sub. (3) until the governor issues a written notice of approval of the statement. The individual or body with policy-making powers may not approve the statement until at least 10 days after publication of the statement under sub. (3). No state employee or official may perform any activity in connection with the drafting of a proposed rule, except for an activity necessary to prepare the statement of the scope of the proposed rule, until the governor and the individual or body with policy-making powers over the subject matter of the proposed rule approve approves the statement. This subsection does not prohibit an agency from performing an activity necessary to prepare a petition and proposed rule for submission under s. 227.26 (4).

AB64,1717 Section 1717. 227.135 (3) of the statutes is amended to read:

AB64,766,9 227.135 (3) If the governor approves a statement of the scope of a proposed rule under sub. (2), the agency shall send an electronic copy of the statement to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register. On the same day that the agency sends the statement to the legislative reference bureau, the agency shall send a copy of the statement to the secretary of administration 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. The legislative reference bureau shall assign a discrete identifying number to each statement of scope and shall include that number and the date of the governor's approval in the publication of the statement of scope in the register.

AB64,1718 Section 1718. 227.136 of the statutes is created to read:

AB64,766,16 227.136 Preliminary public hearing and comment period. (1) Within 10 days after publication of a statement of the scope of a proposed rule under s. 227.135 (3), either cochairperson of the joint committee for the review of administrative rules may submit a written directive to the agency that prepared the statement for the agency to hold a preliminary public hearing and comment period on the statement of scope as provided in this section.

AB64,767,3 (2) If the agency is directed to hold a preliminary public hearing and comment period on a statement of scope as provided in sub. (1) or if the agency otherwise opts to do so on its own initiative, the agency shall take no further action with respect to any permanent rule based upon that statement of scope until otherwise permitted under sub. (6) and shall submit to the legislative reference bureau, in a format approved by the legislative reference bureau, a notice of a preliminary public hearing and comment period to allow for public comment and feedback on the statement of scope. The agency may also take any other action it considers necessary to provide notice of the preliminary public hearing and comment period to other interested persons. The notice shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule and shall include all of the following:

AB64,767,4 (a) A statement of the date, time, and place of the preliminary public hearing.

AB64,767,6 (b) The place where comments on the statement of scope should be submitted and the deadline for submitting those comments.

AB64,767,9 (3) The agency shall hold the preliminary public hearing and comment period in accordance with the notice required under sub. (2), but may not hold the hearing sooner than the 3rd day after publication of the notice in the register.

AB64,767,11 (4) The agency shall conduct a hearing under this section in accordance with s. 227.18.

AB64,767,15 (5) The agency shall report all public comments and feedback on the statement of scope of the proposed rule that the agency receives at the preliminary public hearing and comment period to the individual or body with policy-making powers over the subject matter of the proposed rule.

AB64,767,17 (6) The agency may resume work on a permanent rule upon the conclusion of a preliminary hearing and comment period held under this section.

AB64,767,20 (7) Failure of any person to receive notice of a preliminary public hearing as provided in this section is not grounds for invalidating any resulting rule if notice of the hearing was published in the register in accordance with s. 35.93 (2) (b) 3. bm.

AB64,1719 Section 1719 . 227.137 (3) (intro.) and (a) of the statutes are amended to read:

AB64,768,9 227.137 (3) (intro.) An economic impact analysis of a proposed rule shall contain information on the economic effect of the proposed rule on specific businesses, business sectors, public utility ratepayers, local governmental units, regulated individuals and entities, and the state's economy as a whole. When The agency or vendor preparing the analysis, the agency shall solicit information and advice from businesses, associations representing businesses, local governmental units, and individuals that may be affected by the proposed rule. The agency or vendor shall prepare the economic impact analysis in coordination with local governmental units that may be affected by the proposed rule. The agency or vendor may also request information that is reasonably necessary for the preparation of an economic impact analysis from other businesses, associations, local governmental units, and individuals and from other agencies. The economic impact analysis shall include all of the following:

AB64,768,16 (a) An analysis and quantification of the policy problem that the proposed rule is intending to address, including comparisons with the approaches used by the federal government and by Illinois, Iowa, Michigan, and Minnesota to address that policy problem and, if. If the approach chosen by the agency to address that policy problem is different from those approaches, an economic impact analysis prepared by an agency shall include a statement as to why the agency chose a different approach.

AB64,1720 Section 1720. 227.137 (3) (b) of the statutes is renumbered 227.137 (3) (b) (intro.) and amended to read:

AB64,768,23 227.137 (3) (b) (intro.) An analysis and detailed quantification of the economic impact of the proposed rule, including the implementation and compliance costs that are reasonably expected to be incurred by or passed along to the businesses, local governmental units, and individuals that may be affected by the proposed rule., specifically including all of the following:

AB64,1721 Section 1721. 227.137 (3) (b) 1. and 2. of the statutes are created to read:

AB64,769,7 227.137 (3) (b) 1. An estimate of the total implementation and compliance costs that are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals as a result of the proposed rule, expressed as a single dollar figure. With respect to an independent economic impact analysis prepared under sub. (4m) or s. 227.19 (5) (b) 3., the vendor preparing the analysis shall provide a detailed explanation of any variance from the agency's estimate under this subdivision.

AB64,769,12 2. A determination, for purposes of the requirement under s. 227.139, as to whether $10,000,000 or more in implementation and compliance costs are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals over any 2-year period as a result of the proposed rule.

AB64,1722 Section 1722 . 227.137 (3c) of the statutes is created to read:

AB64,769,18 227.137 (3c) An agency may not begin soliciting information and advice under sub. (3) until the 10-day period under s. 227.136 (1) has concluded or, if the agency holds a preliminary hearing and comment period as provided in s. 227.136 (2), until the agency is permitted to resume work on the rule under s. 227.136 (6), whichever occurs later.

AB64,1723 Section 1723 . 227.137 (3m) of the statutes is created to read:

AB64,770,12 227.137 (3m) Prior to submitting an economic impact analysis prepared under sub. (2) to the legislative council staff under s. 227.15 (1), an agency shall submit the economic impact analysis to the department of administration. The department of administration shall review the economic impact analysis and determine whether the data used by the agency in preparing the analysis are appropriate for determining the economic impact of the proposed rule and whether the analysis accurately gauges the economic impact of the proposed rule. If the department of administration determines that the agency's analysis does not accurately gauge the economic impact of the proposed rule, it shall recommend any modifications to the economic impact analysis that it considers necessary and direct the agency to revise the analysis. An agency may not submit an economic impact analysis to the legislative council staff under s. 227.15 (1) without the approval of the department of administration. The department of administration may approve an economic impact analysis only upon determining that the economic impact analysis accurately gauges the economic impact of the proposed rule. The department of administration shall similarly review and approve any revised economic impact analysis prepared under sub. (4). The department of administration shall, upon approving an economic impact analysis, submit a statement indicating that approval to the agency.

AB64,1724 Section 1724 . 227.137 (4m) of the statutes is created to read:

AB64,770,19 227.137 (4m) (a) After an agency submits an economic impact analysis for a proposed rule to the legislature under sub. (4), but before the agency submits the proposed rule for approval under s. 227.185 (1), the department of administration or either cochairperson of the joint committee for review of administrative rules may request an independent economic impact analysis to be prepared for the proposed rule.

AB64,771,2 (b) 1. If the department of administration requests an independent economic impact analysis under par. (a), the department shall notify the agency proposing the proposed rule and shall contract with a vendor that is not an agency to prepare the independent economic impact analysis. If a cochairperson of the joint committee for review of administrative rules requests an independent economic impact analysis under par. (a), the cochairperson shall notify the agency proposing the proposed rule and shall direct the department of administration to contract with a vendor that is not an agency to prepare the independent economic impact analysis.

AB64,771,11 2. Upon completion of an independent economic impact analysis requested by the department of administration, the vendor preparing the analysis may submit a request to the department of administration for reimbursement of its actual and necessary costs of completing the analysis, and the department of administration shall assess the agency that is proposing the proposed rule for those costs. The department of administration shall credit all moneys received under this subdivision to the appropriation account under s. 20.505 (1) (kt) and shall reimburse a person who submits a request for reimbursement under this subdivision from the appropriation account under s. 20.505 (1) (kt).

AB64,771,16 3. Upon completion of an independent economic impact analysis requested by a cochairperson of the joint committee for review of adminstrative rules, the vendor preparing the analysis may submit a request to the committee for reimbursement of its actual and necessary costs of completing the analysis. Costs of completing the independent economic impact analysis shall be paid as follows:

AB64,771,24 a. If the estimate in the independent economic impact analysis of total implementation and compliance costs under sub. (3) (b) 1. varies from the agency's estimate by 15 percent or more or varies from the agency's determination that there will be no implementation or compliance costs, the committee shall assess the agency that is proposing the proposed rule for those costs. The committee shall credit all moneys received under this subd. 3. a. to the appropriation account under s. 20.765 (1) (kt) and shall reimburse the vendor from the appropriation account under s. 20.765 (1) (kt).

AB64,772,6 b. If the estimate in the independent economic impact analysis of total implementation and compliance costs under sub. (3) (b) 1. does not vary from the agency's estimate by 15 percent or more or is in accord with the agency's determination that there will be no implementation and compliance costs, the committee shall reimburse the vendor in equal parts from the appropriation accounts under s. 20.765 (1) (a) and (b).

AB64,772,8 (c) A vendor preparing an independent economic impact analysis under par. (b) shall do all of the following:

AB64,772,9 1. Include in the analysis the information that is required under sub. (3).

AB64,772,15 2. Upon completion of the analysis, submit the analysis to the agency, 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.

AB64,772,17 3. Complete the independent economic impact analysis within 60 days after contracting to prepare the analysis.

AB64,772,20 (d) When an independent economic impact analysis is requested under par. (a), the agency may not submit the proposed rule for approval under s. 227.185 (1) until the agency receives the completed independent economic impact analysis.

AB64,1725 Section 1725 . 227.137 (6) and (7) of the statutes are repealed.

AB64,1726 Section 1726 . 227.139 of the statutes is created to read:

AB64,773,7 227.139 Passage of bill required for certain rules. (1) If an economic impact analysis prepared under s. 227.137 (2), a revised economic impact analysis prepared under s. 227.137 (4), or an independent economic impact analysis prepared under s. 227.137 (4m) or 227.19 (5) (b) 3. indicates that $10,000,000 or more in implementation and compliance costs are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals over any 2-year period as a result of the proposed rule, the agency proposing the rule shall stop work on the proposed rule and may not continue promulgating the proposed rule notwithstanding any provision authorizing or requiring the agency to promulgate the proposed rule, except as authorized under sub. (2).

AB64,773,11 (2) (a) Any member of the legislature may introduce a bill authorizing an agency to promulgate a rule that the agency is prohibited from promulgating under sub. (1). The agency may resume the rule-making process as provided in this subchapter upon enactment of a bill introduced under this paragraph.

AB64,773,24 (b) If an agency is prohibited from promulgating a rule under sub. (1), the agency may modify the proposed rule, if the modification is germane to the subject matter of the proposed rule, to address the implementation and compliance costs of the proposed rule. If the agency modifies a proposed rule under this paragraph, the agency shall prepare a revised economic impact analysis under s. 227.137 (4). Following the modification, the agency may continue with the rule-making process as provided in this subchapter if the revised economic impact analysis prepared by the agency indicates, and any independent economic impact analysis prepared under s. 227.137 (4m) or 227.19 (5) (b) 3. subsequent to the agency's modification also indicates, that $10,000,000 or more in implementation and compliance costs are not reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals over any 2-year period as a result of the proposed rule.

AB64,773,25 (3) This section does not apply to rules promulgated under s. 227.24.

AB64,1727 Section 1727. 227.14 (2) (a) 3m. of the statutes is created to read:

AB64,774,6 227.14 (2) (a) 3m. A summary of any public comments and feedback on the statement of scope of the proposed rule that the agency received at any preliminary public hearing and comment period held under s. 227.136 and a description of how and to what extent the agency took those comments and that feedback into account in drafting the proposed rule.

AB64,1728 Section 1728 . 227.14 (4m) of the statutes is amended to read: