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4. Any document that any statute specifically provides is not required to be
10promulgated as a rule.
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5. A declaratory ruling issued under s. 227.41.
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6. A pleading or brief filed in court by the state, an agency, or an agency official.
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7. A letter or written legal advice of the department of justice or a formal or
14informal opinion of the attorney general, including an opinion issued under s.
15165.015 (1).
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8. Any document or communication for which a procedure for public input,
17other than that provided under s. 227.112 (1), is provided by law.
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9. Any document or communication that is not subject to the right of inspection
19and copying under s. 19.35 (1).
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20Section
3. 227.01 (13) (intro.) of the statutes is amended to read:
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227.01
(13) (intro.) “Rule" means a regulation, standard, statement of policy,
22or general order of general application
which
that has the
effect force of law and
23which that is issued by an agency to implement, interpret, or make specific
24legislation enforced or administered by the agency or to govern the organization or
25procedure of the agency. “Rule" includes a modification of a rule under s. 227.265.
1“Rule" does not include, and s. 227.10 does not apply to, any action or inaction of an
2agency, whether it would otherwise meet the definition under this subsection,
which 3that:
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4Section
4. Subchapter II (title) of chapter 227 [precedes 227.10] of the statutes
5is amended to read:
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ADMINISTRATIVE RULES
and
9
GUIDANCE DOCUMENTS
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10Section 5
. 227.10 (2g) of the statutes is created to read:
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227.10
(2g) No agency may seek deference in any proceeding based on the
12agency's interpretation of any law.
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13Section 6
. 227.11 (title) of the statutes is amended to read:
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14227.11 (title)
Extent to which chapter confers Agency rule-making
15authority.
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16Section 7
. 227.11 (3) of the statutes is created to read:
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227.11
(3) A settlement agreement, consent decree, or court order does not
18confer rule-making authority and cannot be used by an agency as authority to
19promulgate rules. No agency may agree to promulgate a rule as a term in any
20settlement agreement, consent decree, or stipulated order of a court unless the
21agency has explicit statutory authority to promulgate the rule at the time the
22settlement agreement, consent decree, or stipulated order of a court is executed.
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23Section
8. 227.112 of the statutes is created to read:
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24227.112 Guidance documents. (1) (a) Except as provided in par. (c), no less
25than 21 days before adopting a guidance document, an agency shall post the proposed
1guidance document on the agency's Internet site and, on the same date, submit a
2notice of the public comment period on the proposed guidance document under par.
3(b), including the Web address of the agency's Internet site at which comments may
4be submitted, to the legislative reference bureau, in a format approved by the
5legislative reference bureau, for publication in the register. The notice need not be
6published in the register on the same day the agency posts the proposed guidance
7document on its Internet site.
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(b) The agency shall provide for a period for public comment on a proposed
9guidance document posted under par. (a), during which any person may submit
10written comments to the agency with respect to the proposed guidance document.
11Except as provided in par. (c), the period for public comment shall end no sooner than
12the 21st day after the date on which the proposed guidance document is posted on
13the agency's Internet site.
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(c) An agency may post a proposed guidance document less than 21 days before
15adopting the proposed guidance document and with a public comment period shorter
16than 21 days with the approval of the governor.
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(d) An agency shall retain all written comments submitted during the public
18comment period under par. (b) and shall consider those comments in determining
19whether to adopt the guidance document as originally proposed, modify the proposed
20guidance document, or take any other action.
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21(2) An agency shall post each guidance document that the agency has adopted
22on the agency's Internet site and shall permit continuing public comment on the
23guidance document. The agency shall ensure that each guidance document that the
24agency has adopted remains on the agency's Internet site as provided in this
25subsection until the guidance document is no longer in effect, is no longer valid, or
1is superseded or until the agency otherwise rescinds its adoption of the guidance
2document.
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3(3) A guidance document does not have the force of law and does not provide
4the authority for implementing or enforcing a standard, requirement, or threshold,
5including as a term or condition of any license. An agency that proposes to rely on
6a guidance document to the detriment of a person in any proceeding shall afford the
7person an adequate opportunity to contest the legality or wisdom of a position taken
8in the guidance document. An agency may not use a guidance document to foreclose
9consideration of any issue raised in the guidance document.
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10(4) If an agency proposes to act in any proceeding at variance with a position
11expressed in a guidance document, it shall provide a reasonable explanation for the
12variance. If an affected person in any proceeding may have relied reasonably on the
13agency's position, the explanation must include a reasonable justification for the
14agency's conclusion that the need for the variance outweighs the affected person's
15reliance interest.
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16(5) Persons that qualify under s. 227.12 to petition an agency to promulgate
17a rule may, as provided in s. 227.12, petition an agency to promulgate a rule in place
18of a guidance document.
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19(6) Any action or inaction by an agency related to the requirements of this
20section constitutes a decision subject to judicial review under s. 227.53.
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21(7) Any guidance document shall be signed by the secretary or head of the
22agency below the following certification: “I have reviewed this guidance document
23or proposed guidance document and I certify that it complies with sections 227.10
24and 227.11 of the Wisconsin Statutes. I further certify that the guidance document
25or proposed guidance document contains no standard, requirement, or threshold
1that is not explicitly required or explicitly permitted by a statute or a rule that has
2been lawfully promulgated. I further certify that the guidance document or proposed
3guidance document contains no standard, requirement, or threshold that is more
4restrictive than a standard, requirement, or threshold contained in the Wisconsin
5Statutes.”
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6(8) This section does not apply to guidance documents adopted before the
7effective date of this subsection .... [LRB inserts date], but on July 1, 2018, any
8guidance document that has not been adopted in accordance with sub. (1) or that does
9not contain the certification required under sub. (7) shall be considered rescinded.
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10Section 9
. 227.53 (1) (intro.) of the statutes is amended to read:
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227.53
(1) (intro.) Except as otherwise specifically provided by law, any person
12aggrieved by a decision specified in s.
227.112 or 227.52 shall be entitled to judicial
13review of the decision as provided in this chapter and subject to all of the following
14procedural requirements:
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15Section 10
. 227.57 (11) of the statutes is amended to read:
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227.57
(11) Upon review of an agency action or decision
affecting a property
17owner's use of the property owner's property, the court shall accord no deference to
18the agency's interpretation of law
if the agency action or decision restricts the
19property owner's free use of the property owner's property.