6. The proposed rule is filed with the Legislative Reference Bureau (LRB) for
publication in the Wisconsin Administrative Register, and, subject to certain
exceptions, the rule becomes effective on the first day of the first month beginning
after publication of the revised chapters of the Wisconsin Administrative Code
(code).
The bill
Expedited procedure for repealing unauthorized rules
This bill provides for an alternate, expedited procedure an agency can use to
repeal a rule that the agency determines it no longer has the authority to promulgate
because of the repeal or amendment of the law that previously authorized its
promulgation (unauthorized rule). Under the bill, an agency, instead of using the
procedure described above, may promulgate a rule that repeals an unauthorized rule
using the following procedure:
1. The agency submits a petition with a proposed rule that repeals a rule the
agency has determined is an unauthorized rule to the Legislative Council Staff for
review, along with certain information and a statement that the agency is petitioning
JCRAR to use the expedited procedure to repeal a rule the agency has determined
to be an unauthorized rule.
2. The Legislative Council Staff reviews the petition and proposed rule and
submits to JCRAR the petition and proposed rule with a written report that includes
a statement of the Legislative Council Staff's determination of whether the proposed
rule proposes to repeal an unauthorized rule.
3. Following receipt of the petition and proposed rule submitted by the
Legislative Council Staff, JCRAR reviews the petition and proposed rule and may 1)
approve the agency's petition if JCRAR determines that the proposed rule would
repeal an unauthorized rule; 2) deny the petition; or 3) request that the agency make
changes to the proposed rule and resubmit the petition and proposed rule as
described above.
If JCRAR approves the petition, the agency must promulgate the proposed rule
to repeal the unauthorized rule by filing a certified copy of the rule with the LRB,
together with a copy of JCRAR's decision.
Agency review of rules
The bill requires each agency with any rules published in the code to biennially
submit a report to JCRAR listing all of the following rules promulgated or otherwise
administered by that agency:
1. Unauthorized rules.
2. Rules for which the authority to promulgate has been restricted.
3. Rules that are obsolete or that have been rendered unnecessary.
4. Rules that are duplicative of, superseded by, or in conflict with another rule,
a state statute, a federal statute or regulation, or a court ruling.
5. Economically burdensome rules.
The report must also include 1) a description of the agency's actions, if any, to
address each rule listed in the report and, if the agency has not taken any action to
address a rule listed in the report, an explanation for not taking action; 2) a
description of the status of each rule listed in the previous year's report not otherwise
listed; and 3) if the agency determines that there are no such rules to list, a statement
of that determination.
If an agency identifies an unauthorized rule in the report, the bill requires the
agency to submit a petition to repeal the unauthorized rule, using the process
described above, within 30 days after the report.
Agency review of legislative enactments
The bill requires agencies to review enactments of the legislature (acts) to
determine whether any part of an act results in any of the following consequences:
1. Eliminates or restricts the agency's authority to promulgate any of the
agency's rules.
2. Renders any of the agency's rules obsolete or unnecessary.
3. Renders, for any reason, any of the agency's rules not in conformity with or
superseded by a state statute, including due to statutory numbering or terminology
changes in the act.
4. Requires or otherwise necessitates rule making by the agency.
If an agency determines that any such consequence results from an act, within
six months after the act's effective date, the agency must do one or more of the
following, as applicable, to address any consequence identified by the agency:
1. Submit a statement of the scope of a proposed rule to address any such
consequence to the governor, unless the act requires otherwise or unless the agency
submits a notice to JCRAR explaining why it is unable to submit the statement of
scope within that time period and an estimate of when the agency plans to submit
the statement of scope.
2. Submit a petition to use the expedited procedure described above for
repealing an unauthorized rule to the Legislative Council Staff.
3. Submit a request to the LRB for the LRB to use its revision authority to make
certain changes to the code.
Biennial report by Legislative Reference Bureau
The bill requires the LRB to biennially report to JCRAR regarding rules in the
code that the LRB has identified as possibly being in need of revision.
Retrospective economic impact analyses for existing rules
The bill allows JCRAR to direct an agency to prepare a retrospective economic
impact analysis for any of an agency's rules that are published in the code. JCRAR
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. An agency
must include in a retrospective economic impact analysis a comparison of the actual
economic effect of the rules to any economic impact analysis that analyzed the
economic effect of the rules when they were proposed. The bill otherwise requires
an agency to prepare a retrospective economic impact analysis in a manner similar
to that prescribed for an economic impact analysis for a proposed rule.
For further information see the state 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:
SB322,1
1Section 1
. 13.92 (2) (jg) of the statutes is created to read:
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13.92
(2) (jg) Prior to the end of each even-numbered year, report to the joint
3committee for review of administrative rules regarding rules in the Wisconsin
4administrative code that the chief has identified as possibly being in need of revision.
SB322,2
5Section 2
. 35.93 (2) (b) 3. fm. of the statutes is created to read:
SB322,4,76
35.93
(2) (b) 3. fm. Retrospective economic impact analyses for rules under s.
7227.138.
SB322,3
8Section 3
. 35.93 (2) (b) 3. gm. of the statutes is created to read:
SB322,4,109
35.93
(2) (b) 3. gm. Petitions and proposed rules submitted under s. 227.26 (4)
10(b) 1.
SB322,4
11Section 4
. 227.135 (2) of the statutes is amended to read:
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227.135
(2) An agency that has prepared a statement of the scope of the
13proposed rule shall present the statement to the governor and to the individual or
14body with policy-making powers over the subject matter of the proposed rule for
15approval. The agency may not send the statement to the legislative reference bureau
16for publication under sub. (3) until the governor issues a written notice of approval
17of the statement. The individual or body with policy-making powers may not
18approve the statement until at least 10 days after publication of the statement under
19sub. (3). No state employee or official may perform any activity in connection with
1the drafting of a proposed rule
, except for an activity necessary to prepare the
2statement of the scope of the proposed rule until the governor and the individual or
3body with policy-making powers over the subject matter of the proposed rule
4approve the statement.
This subsection does not prohibit an agency from performing
5an activity necessary to prepare a petition and proposed rule for submission under
6s. 227.26 (4).
SB322,5
7Section 5
. 227.138 of the statutes is created to read:
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8227.138 Retrospective economic impact analyses for rules. (1) The joint
9committee for review of administrative rules may direct an agency to prepare a
10retrospective economic impact analysis for any of an agency's rules that are
11published in the code. The committee may identify one or more specific chapters,
12sections, or other subunits in the code that are administered by the agency as the
13rules that are to be the subject of the analysis and may specify a deadline for the
14preparation of the analysis. A retrospective economic impact analysis shall contain
15information on the economic effect of the rules on specific businesses, business
16sectors, public utility ratepayers, local governmental units, and the state's economy
17as a whole. When preparing the analysis, the agency shall solicit information and
18advice from businesses, associations representing businesses, local governmental
19units, and individuals that have been affected by the rules. The agency shall prepare
20the retrospective economic impact analysis in coordination with local governmental
21units that have been affected by the rules. The agency may request information that
22is reasonably necessary for the preparation of a retrospective economic impact
23analysis from other businesses, associations, local governmental units, and
24individuals and from other agencies. The retrospective economic impact analysis
25shall include all of the following:
SB322,6,4
1(a) An analysis and quantification of the policy problem that the rules were
2intended to address, including comparisons with the approaches used by the federal
3government and by Illinois, Iowa, Michigan, and Minnesota to address that policy
4problem.
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(b) An analysis and detailed quantification of the economic impact of the rules,
6including the implementation and compliance costs that have been incurred by or
7passed along to the businesses, local governmental units, and individuals that have
8been affected by the rules.
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(c) An analysis of the actual and quantifiable benefits of the rules, including
10an assessment of how effective the rules have been in addressing the policy problem
11that the rules were intended to address.
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(d) An analysis of alternatives to the rules, including the alternative of
13repealing the rules.
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(e) A determination made in consultation with the businesses, local
15governmental units, and individuals that have been affected by the rules as to
16whether the rules have adversely affected in a material way the economy, a sector
17of the economy, productivity, jobs, or the overall economic competitiveness of this
18state.
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(f) An analysis of the ways in which and the extent to which the rules have
20placed limitations on the free use of private property, including a discussion of
21alternatives to the rules that would minimize any such limitations.
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(g) A comparison of the actual economic effect of the rules being analyzed to any
23economic impact analysis that analyzed the expected economic effect of those rules
24when they were proposed.
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1(h) Any other information requested by the committee related to the economic
2impact of the rules.
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3(2) An agency that prepares a retrospective economic impact analysis under
4sub. (1) shall submit that analysis to the department of administration, to the
5governor, and to the chief clerks of each house of the legislature, who shall distribute
6the analysis to the presiding officers of their respective houses, to the chairpersons
7of the appropriate standing committees of their respective houses, as designated by
8those presiding officers, and to the cochairpersons of the joint committee for review
9of administrative rules. The agency shall also send an electronic copy of the analysis
10to the legislative reference bureau, in a format approved by the legislative reference
11bureau, for publication in the register.
SB322,6
12Section
6. 227.26 (4) of the statutes is created to read:
SB322,7,1613
227.26
(4) Repeal of unauthorized rules. (a) In this subsection,
14“unauthorized rule" means a rule that an agency lacks the authority to promulgate
15due to the repeal or amendment of the law that previously authorized its
16promulgation.
SB322,7,2117
(b) Notwithstanding ss. 227.114 to 227.117 and 227.135 to 227.19, an agency
18that promulgated or that otherwise administers a rule that the agency determines
19is an unauthorized rule shall petition the joint committee for review of
20administrative rules for authorization to repeal that rule by using the following
21process:
SB322,8,522
1. The agency shall submit a petition with a proposed rule that repeals the rule
23the agency has determined is an unauthorized rule to the legislative council staff for
24review. The proposed rule shall be in the form required under s. 227.14 (1) and shall
25include the material required under s. 227.14 (2) (a) 1., 2., and 7. and a statement that
1the agency is petitioning the joint committee for review of administrative rules to use
2the process under this subsection to repeal a rule the agency has determined to be
3an unauthorized rule. The agency shall also send an electronic copy of the petition
4and the proposed rule to the legislative reference bureau, in a format approved by
5the legislative reference bureau, for publication in the register.
SB322,8,126
2. The legislative council staff shall review the petition and proposed rule in
7accordance with s. 227.15 (2) and submit to the joint committee for review of
8administrative rules the petition and proposed rule with a written report including
9a statement of its determination as to whether the proposed rule proposes to repeal
10an unauthorized rule. The legislative council staff shall send the agency a copy of
11its report with an indication of the date on which the petition and proposed rule were
12submitted to the committee.
SB322,8,1613
3. Following receipt of the petition and proposed rule submitted by the
14legislative council staff under subd. 2., the joint committee for review of
15administrative rules shall review the petition and proposed rule and may do any of
16the following:
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a. Approve the agency's petition if the committee determines that the proposed
18rule would repeal an unauthorized rule.
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b. Deny the agency's petition.
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c. Request that the agency make changes to the proposed rule and resubmit the
21petition and proposed rule under subd. 1.
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4. The committee shall inform the agency in writing of its decision as to the
23petition.
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(c) If the joint committee for review of administrative rules approves a petition
25to repeal an unauthorized rule as provided in par. (b) 3. a., the agency shall
1promulgate the proposed rule by filing a certified copy of the rule with the legislative
2reference bureau under s. 227.20, together with a copy of the committee's decision.
SB322,7
3Section 7
. 227.29 of the statutes is created to read:
SB322,9,7
4227.29 Agency review of rules and enactments. (1) By March 31 of each
5odd-numbered year, each agency with any rules published in the code shall submit
6a report to the joint committee for review of administrative rules listing all of the
7following rules promulgated or otherwise administered by that agency:
SB322,9,108
(a) Unauthorized rules, as defined in s. 227.26 (4) (a), together with a
9description of the legislation that eliminated the agency's authority to promulgate
10any such rule.
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(b) Rules for which the authority to promulgate has been restricted, together
12with a description of the legislation that restricted that authority.
SB322,9,1413
(c) Rules that are obsolete or that have been rendered unnecessary, together
14with a description of why those rules are obsolete or have been rendered unnecessary.
SB322,9,1815
(d) Rules that are duplicative of, superseded by, or in conflict with another rule,
16a state statute, a federal statute or regulation, or a ruling of a court of competent
17jurisdiction, together with a citation to or the text of any such statute, regulation, or
18ruling.
SB322,9,1919
(e) Rules that the agency determines are economically burdensome.
SB322,9,20
20(2) The report under sub. (1) shall also include all of the following:
SB322,9,2321
(a) A description of the agency's actions, if any, to address each rule listed in
22the report. If the agency has not taken any action to address a rule listed in the
23report, the agency shall include an explanation for not taking action.
SB322,9,2524
(b) A description of the status of each rule listed in the previous year's report
25not otherwise listed.
SB322,10,2
1(c) If the agency determines that there is no rule as described under sub. (1) (a),
2(b), (c), (d), or (e), a statement of that determination.
SB322,10,7
3(3) If an agency identifies an unauthorized rule under sub. (1) (a) and is not
4otherwise in the process of promulgating a rule that repeals the unauthorized rule,
5the agency shall, within 30 days after the agency submits the report, submit a
6petition to the legislative council staff under s. 227.26 (4) (b) 1. to repeal the
7unauthorized rule if the agency has not previously done so.
SB322,10,9
8(4) (a) In this subsection, “enactment" means an act or a portion of an act that
9is required to be published under s. 35.095 (3) (a).
SB322,10,1110
(b) Each agency shall review enactments to determine whether any part of an
11enactment does any of the following:
SB322,10,1312
1. Eliminates or restricts the agency's authority to promulgate any rules
13promulgated or otherwise administered by that agency.
SB322,10,1514
2. Renders any rules promulgated or otherwise administered by that agency
15obsolete or unnecessary.
SB322,10,1816
3. Renders, for any reason, any rules promulgated or otherwise administered
17by that agency not in conformity with or superseded by a state statute, including due
18to statutory numbering or terminology changes in the enactment.
SB322,10,1919
4. Requires or otherwise necessitates rule making by the agency.
SB322,10,2520
(c) If an agency determines that any consequence specified in par. (b) 1. to 4.
21results from an enactment or part of an enactment, within 6 months after the
22applicable effective date for the enactment or part of the enactment, the agency shall
23do one or more of the following, as applicable, to address the consequence identified
24by the agency and notify the joint committee for review of administrative rules of its
25action:
SB322,11,5
11. Submit a statement of the scope of a proposed rule under s. 227.135 (2),
2unless the enactment requires otherwise or unless the agency submits a notice to the
3committee explaining why it is unable to submit the statement of scope within that
4time period and an estimate of when the agency plans to submit the statement of
5scope.
SB322,11,86
2. In the case of an affected rule that the agency determines is an unauthorized
7rule, as defined in s. 227.26 (4) (a), submit a petition to the legislative council staff
8under s. 227.26 (4) (b) 1.
SB322,11,119
3. In the case of a consequence specified under par. (b) 3. that can be addressed
10by the legislative reference bureau using its authority under s. 13.92 (4) (b), submit
11a request to the legislative reference bureau to use that authority.
SB322,8
12Section
8.
Initial applicability.
SB322,11,1513
(1) The treatment of section 227.29 (4) of the statutes first applies to
14enactments published by the legislative reference bureau under section 35.095 (3)
15(a) of the statutes on the effective date of this subsection.