SB887: Bill Text

SB887,98,15 (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agency has adopted remains on the agency's Internet site as provided in this subsection until the guidance document is no longer in effect, is no longer valid, or is superseded or until the agency otherwise rescinds its adoption of the guidance document.

SB887,98,22 (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.

SB887,99,3 (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.

SB887,99,6 (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.

SB887,99,16 (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.”

SB887,99,21 (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.

SB887,99,24 (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.

SB887,130 Section 130 . 227.13 of the statutes is amended to read:

SB887,100,8 227.13 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.

SB887,131 Section 131. 227.135 (1) (g) of the statutes is created to read:

SB887,100,13 227.135 (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.

SB887,132 Section 132. 227.135 (1) (h) of the statutes is created to read:

SB887,100,23 227.135 (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.

SB887,133 Section 133 . 227.135 (2) of the statutes is renumbered 227.135 (2) (a) 1. and amended to read:

SB887,101,12 227.135 (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.

SB887,101,20 (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).

SB887,102,2 (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).

SB887,134 Section 134 . 227.135 (2) (a) 2. of the statutes is created to read:

SB887,102,5 227.135 (2) (a) 2. The requirement under subd. 1. does not apply to statements of scope prepared by the department of public instruction.

SB887,135 Section 135 . 227.135 (3) of the statutes is amended to read:

SB887,102,20 227.135 (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.

SB887,136 Section 136 . 227.135 (4) of the statutes is renumbered 227.135 (4) (a) (intro.) and amended to read:

SB887,103,6 227.135 (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:

SB887,103,11 (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).

SB887,137 Section 137 . 227.135 (4) (a) 1. to 6. of the statutes are created to read:

SB887,103,13 227.135 (4) (a) 1. A change to the objectives of the proposed rule.

SB887,103,14 2. A change to the basis and purpose of the proposed rule.

SB887,103,15 3. A change to the policies to be included in the proposed rule.

SB887,103,16 4. A change to the entities affected by the proposed rule.

SB887,103,18 5. A change to the overall breadth or scope of the regulation in the proposed rule.

SB887,103,21 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.

SB887,138 Section 138. 227.135 (6) of the statutes is created to read:

SB887,103,25 227.135 (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.

SB887,139 Section 139. 227.137 (2) of the statutes is amended to read:

SB887,104,7 227.137 (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).

SB887,140 Section 140. 227.137 (2m) of the statutes is created to read:

SB887,104,12 227.137 (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).

SB887,141 Section 141. 227.137 (3) (e) of the statutes is renumbered 227.137 (3) (e) (intro.) and amended to read:

SB887,104,20 227.137 (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:

SB887,142 Section 142. 227.137 (3) (e) 1. to 4. of the statutes are created to read:

SB887,104,23 227.137 (3) (e) 1. Compiling a list of affected persons and potential economic concerns identified in the comments solicited by the agency.

SB887,104,24 2. Contacting affected persons to discuss economic concerns.

SB887,104,25 3. Considering any raised concerns in drafting the economic impact analysis.

SB887,105,3 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.

SB887,143 Section 143 . 227.137 (3m) of the statutes is created to read:

SB887,105,16 227.137 (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.

SB887,105,18 (b) This subsection does not apply to a person preparing an independent economic impact analysis under sub. (4m).

SB887,144 Section 144 . 227.137 (4) of the statutes is amended to read:

SB887,106,12 227.137 (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.

SB887,145 Section 145. 227.138 (1) (intro.) of the statutes is renumbered 227.138 (1) and amended to read:

SB887,106,20 227.138 (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.

SB887,107,7 (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:

SB887,146 Section 146 . 227.138 (1) (a) to (h) of the statutes are renumbered 227.138 (1r) (a) to (h).

SB887,147 Section 147. 227.138 (1g) of the statutes is created to read:

SB887,107,19 227.138 (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).

SB887,148 Section 148 . 227.138 (2) of the statutes is amended to read:

SB887,108,5 227.138 (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.

SB887,149 Section 149 . 227.18 (3m) of the statutes is created to read:

SB887,108,8 227.18 (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:

SB887,108,11 (a) Review the statement of scope of the proposed rule prepared under s. 227.135 to determine whether a revised statement of scope is required under s. 227.135 (4).

SB887,108,14 (b) Review the economic impact analysis for the proposed rule prepared under s. 227.137 to determine whether a revised economic impact analysis is required under s. 227.137 (4).

SB887,150 Section 150 . 227.185 of the statutes is amended to read:

SB887,108,24 227.185 Approval by governor. After a proposed rule is in final draft form, the agency shall submit the proposed rule to the governor for approval. The governor, in his or her discretion, may approve or reject the proposed rule. If the governor approves a proposed rule, the governor shall provide the agency with a written notice of that approval. No proposed rule may be submitted to the legislature for review under s. 227.19 (2) unless the governor has approved the proposed rule in writing. The agency shall notify the joint committee for review of administrative rules whenever it submits a proposed rule for approval under this section. This section does not apply to proposed rules prepared by the department of public instruction.

SB887,151 Section 151. 227.20 (3) (a) of the statutes is amended to read:

SB887,109,1 227.20 (3) (a) That the rule was duly promulgated by the agency.

SB887,152 Section 152. 227.20 (3) (c) of the statutes is repealed.

SB887,153 Section 153 . 227.24 (1) (e) 1d. of the statutes is amended to read:

SB887,109,16 227.24 (1) (e) 1d. Prepare a statement of the scope of the proposed emergency rule as provided in s. 227.135 (1), obtain approval of the statement as provided in s. 227.135 (2), send the statement to the legislative reference bureau for publication in the register as provided in s. 227.135 (3), and hold a preliminary public hearing and comment period if directed under s. 227.136 (1). If the agency changes the scope of a proposed emergency rule as described in s. 227.135 (4), the agency shall prepare and obtain approval of a revised statement of the scope of the proposed emergency rule as provided in s. 227.135 (4). No state employee or official may perform any activity in connection with the drafting of a proposed emergency rule , except for an activity necessary to prepare the statement of the scope of the proposed emergency rule, until the governor approves the statement, if such approval is required, and the individual or body with policy-making powers over the subject matter of the proposed emergency rule approve approves the statement.

SB887,154 Section 154 . 227.24 (1) (e) 1g. of the statutes is amended to read:

SB887,109,25 227.24 (1) (e) 1g. Submit the proposed emergency rule in final draft form to the governor for approval. The governor, in his or her discretion, may approve or reject the proposed emergency rule. If the governor approves a proposed emergency rule, the governor shall provide the agency with a written notice of that approval. An agency may not file an emergency rule with the legislative reference bureau as provided in s. 227.20 and an emergency rule may not be published until the governor approves the emergency rule in writing. This subdivision does not apply to proposed emergency rules of the department of public instruction.

SB887,155 Section 155. 227.26 (2) (im) of the statutes is created to read:

SB887,110,4 227.26 (2) (im) Multiple suspensions. Notwithstanding pars. (i) and (j), the committee may act to suspend a rule as provided under this subsection multiple times.

SB887,156 Section 156 . 227.40 (1) of the statutes is amended to read:

SB887,110,22 227.40 (1) Except as provided in sub. (2), the exclusive means of judicial review of the validity of a rule or guidance document shall be an action for declaratory judgment as to the validity of the rule or guidance document brought in the circuit court for the county where the party asserting the invalidity of the rule or guidance document resides or has its principal place of business or, if that party is a nonresident or does not have its principal place of business in this state, in the circuit court for the county where the dispute arose. The officer or other agency whose rule or guidance document is involved shall be the party defendant. The summons in the action shall be served as provided in s. 801.11 (3) and by delivering a copy to that officer or, if the agency is composed of more than one person, to the secretary or clerk of the agency or to any member of the agency. The court shall render a declaratory judgment in the action only when it appears from the complaint and the supporting evidence that the rule or guidance document or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule or guidance document in question.

SB887,157 Section 157 . 227.40 (2) (intro.) of the statutes is amended to read:

SB887,110,25 227.40 (2) (intro.) The validity of a rule or guidance document may be determined in any of the following judicial proceedings when material therein:

SB887,158 Section 158. 227.40 (2) (e) of the statutes is amended to read:

SB887,111,6 227.40 (2) (e) Proceedings under s. 66.191, 1981 stats., or s. 40.65 (2), 106.50, 106.52, 303.07 (7) or 303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or 949 for review of decisions and orders of administrative agencies if the validity of the rule or guidance document involved was duly challenged in the proceeding before the agency in which the order or decision sought to be reviewed was made or entered.

SB887,159 Section 159 . 227.40 (3) (intro.) of the statutes is renumbered 227.40 (3) (ag) and amended to read:

SB887,111,18 227.40 (3) (ag) In any judicial proceeding other than one set out above under sub. (1) or (2), in which the invalidity of a rule or guidance document is material to the cause of action or any defense thereto, the assertion of such that invalidity shall be set forth in the pleading of the party so maintaining the invalidity of such the rule or guidance document in that proceeding. The party so asserting the invalidity of such the rule or guidance document shall, within 30 days after the service of the pleading in which the party sets forth such the invalidity, apply to the court in which such the proceedings are had for an order suspending the trial of said the proceeding until after a determination of the validity of said the rule or guidance document in an action for declaratory judgment under sub. (1) hereof.

SB887,160 Section 160 . 227.40 (3) (a) of the statutes is renumbered 227.40 (3) (ar) and amended to read:

SB887,112,2 227.40 (3) (ar) Upon the hearing of such the application, if the court is satisfied that the validity of such the rule or guidance document is material to the issues of the case, an order shall be entered staying the trial of said proceeding until the rendition of a final declaratory judgment in proceedings to be instituted forthwith by the party asserting the invalidity of such the rule or guidance document. If the court shall find finds that the asserted invalidity of a the rule or guidance document is not material to the case, an order shall be entered denying the application for stay.

SB887,161 Section 161 . 227.40 (3) (b) and (c) of the statutes are amended to read:

SB887,112,10 227.40 (3) (b) Upon the entry of a final order in said the declaratory judgment action, it shall be the duty of the party who asserts the invalidity of the rule or guidance document to formally advise the court of the outcome of the declaratory judgment action so brought as ordered by the court. After the final disposition of the declaratory judgment action the court shall be bound by and apply the judgment so entered in the trial of the proceeding in which the invalidity of the rule or guidance document is asserted.

SB887,112,15 (c) Failure to set forth the invalidity of a rule or guidance document in a pleading or to commence a declaratory judgment proceeding within a reasonable time pursuant to such the order of the court or to prosecute such the declaratory judgment action without undue delay shall preclude such the party from asserting or maintaining such that the rule or guidance document is invalid.

SB887,162 Section 162 . 227.40 (4) (a) of the statutes is amended to read:

SB887,112,21 227.40 (4) (a) In any proceeding pursuant to this section for judicial review of a rule or guidance document, the court shall declare the rule or guidance document invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated or adopted without compliance with statutory rule-making or adoption procedures.

SB887,163 Section 163 . 227.40 (6) of the statutes is amended to read:

SB887,113,4 227.40 (6) Upon entry of a final order in a declaratory judgment action under sub. (1) with respect to a rule, the court shall send an electronic notice to the legislative reference bureau of the court's determination as to the validity or invalidity of the rule, in a format approved by the legislative reference bureau, and the legislative reference bureau shall publish a notice of that determination in the Wisconsin administrative register under s. 35.93 (2) and insert an annotation of that determination in the Wisconsin administrative code under s. 13.92 (4) (a).