SB887,132
14Section
132. 227.135 (1) (h) of the statutes is created to read:
SB887,100,2315
227.135
(1) (h) For a proposed emergency rule promulgated under s. 227.24,
16an explanation of why the rule is necessary for the preservation of the public peace,
17health, safety, or welfare. If the rule is exempt from the required finding of
18emergency, the statement of scope shall cite the act number and section or the statute
19section authorizing the promulgation of an emergency rule or a statement that the
20rule is promulgated at the direction of the joint committee for review of
21administrative rules under s. 227.26 (2) (b). The agency shall also include a
22statement as to whether the agency will promulgate a corresponding permanent rule
23and the agency's anticipated time line for promulgating the permanent rule.
SB887,133
24Section 133
. 227.135 (2) of the statutes is renumbered 227.135 (2) (a) 1. and
25amended to read:
SB887,101,12
1227.135
(2) (a) 1.
An
Except as provided in subd. 2., an agency that has
2prepared a statement of the scope of the proposed rule shall present the statement
3to the department of administration, which shall make a determination as to
4whether the agency has the explicit authority to promulgate the rule as proposed in
5the statement of scope and shall report the statement of scope and its determination
6to the governor who, in his or her discretion, may approve or reject the statement of
7scope.
The Except as provided in subd. 2., the agency may not send the statement
8to the legislative reference bureau for publication under sub. (3) until the governor
9issues a written notice of approval of the statement
and may not, without the written
10approval of the governor, send the statement to the legislative reference bureau for
11publication under sub. (3) more than 30 days after the date of the governor's approval
12of the statement of scope.
SB887,101,20
13(b) The An agency
that has prepared a statement of the scope of the proposed
14rule shall
also present the statement to the individual or body with policy-making
15powers over the subject matter of the proposed rule for approval. The individual or
16body with policy-making powers may not approve the statement until at least 10
17days after publication of the statement under sub. (3) and, if a preliminary public
18hearing and comment period are held by the agency under s. 227.136, until the
19individual or body has received and reviewed any public comments and feedback
20received from the agency under s. 227.136 (5).
SB887,102,2
21(c) No state employee or official may perform any activity in connection with
22the drafting of a proposed rule, except for an activity necessary to prepare the
23statement of the scope of the proposed rule
, until
the governor and the individual or
24body with policy-making powers over the subject matter of the proposed rule
25approve the statement
has been approved as required under pars. (a) and (b). This
1subsection paragraph does not prohibit an agency from performing an activity
2necessary to prepare a petition and proposed rule for submission under s. 227.26 (4).
SB887,134
3Section 134
. 227.135 (2) (a) 2. of the statutes is created to read:
SB887,102,54
227.135
(2) (a) 2. The requirement under subd. 1. does not apply to statements
5of scope prepared by the department of public instruction.
SB887,135
6Section 135
. 227.135 (3) of the statutes is amended to read:
SB887,102,207
227.135
(3) If the governor approves a An agency that prepares a statement
8of the scope of a proposed rule under sub.
(2), the agency (1) shall
, subject to sub. (2)
9(a) 1., send an electronic copy of the statement to the legislative reference bureau,
10in a format approved by the legislative reference bureau, for publication in the
11register. On the same day that the agency sends the statement to the legislative
12reference bureau, the agency shall send a copy of the statement to the secretary of
13administration and to the chief clerks of each house of the legislature, who shall
14distribute the statement to the cochairpersons of the joint committee for review of
15administrative rules. The agency shall include with any statement of scope sent to
16the legislative reference bureau the date of the governor's approval of the statement
17of scope
if such approval is required under sub. (2) (a). The legislative reference
18bureau shall assign a discrete identifying number to each statement of scope and
19shall include that number and the date of the governor's approval
, if required, in the
20publication of the statement of scope in the register.
SB887,136
21Section 136
. 227.135 (4) of the statutes is renumbered 227.135 (4) (a) (intro.)
22and amended to read:
SB887,103,623
227.135
(4) (a) (intro.) If at any time after a statement of the scope of a proposed
24rule is approved under sub. (2) the agency changes the scope of the proposed rule in
25any meaningful or measurable way,
including changing the scope of the proposed
1rule so as to include in the scope any activity, business, material, or product that is
2not specifically included in the original scope of the proposed rule, the agency shall
3prepare and obtain approval of a revised statement of the scope of the proposed rule
4in the same manner as the original statement was prepared and approved under
5subs. (1) and (2).
No For purposes of this subsection, a meaningful or measurable
6
change includes any of the following:
SB887,103,11
7(b) Whenever an agency is required to prepare a revised statement of scope
8under this subsection, no state employee or official may perform any activity in
9connection with the drafting of the proposed rule except for an activity necessary to
10prepare the revised statement of the scope of the proposed rule until the revised
11statement is
so approved
as provided in sub. (2).
SB887,137
12Section 137
. 227.135 (4) (a) 1. to 6. of the statutes are created to read:
SB887,103,1313
227.135
(4) (a) 1. A change to the objectives of the proposed rule.
SB887,103,1414
2. A change to the basis and purpose of the proposed rule.
SB887,103,1515
3. A change to the policies to be included in the proposed rule.
SB887,103,1616
4. A change to the entities affected by the proposed rule.
SB887,103,1817
5. A change to the overall breadth or scope of the regulation in the proposed
18rule.
SB887,103,2119
6. A change to the scope of the proposed rule so as to include in the scope any
20activity, business, material, or product that is not specifically included in the original
21statement.
SB887,138
22Section
138. 227.135 (6) of the statutes is created to read:
SB887,103,2523
227.135
(6) An agency that intends to concurrently promulgate an emergency
24rule and a permanent rule that are identical in substance may submit one statement
25of scope indicating this intent.
SB887,139
1Section
139. 227.137 (2) of the statutes is amended to read:
SB887,104,72
227.137
(2) An agency shall prepare an economic impact analysis for a
3proposed rule before submitting the proposed rule to the legislative council staff
4under s. 227.15.
Prior to preparing an economic impact analysis as provided in this
5subsection, the agency shall review the statement of scope for the proposed rule
6prepared under s. 227.135 to determine whether a revised statement of scope is
7required under s. 227.135 (4).
SB887,140
8Section
140. 227.137 (2m) of the statutes is created to read:
SB887,104,129
227.137
(2m) An agency's economic impact analysis under sub. (2) or revised
10economic impact analysis under sub. (4) shall be prepared and submitted separately
11from any fiscal estimate or revised fiscal estimate prepared and submitted under s.
12227.14 (4) (a) or (d).
SB887,141
13Section
141. 227.137 (3) (e) of the statutes is renumbered 227.137 (3) (e)
14(intro.) and amended to read:
SB887,104,2015
227.137
(3) (e) (intro.) A determination made in consultation with the
16businesses, local governmental units, and individuals that may be affected by the
17proposed rule as to whether the proposed rule would adversely affect in a material
18way the economy, a sector of the economy, productivity, jobs, or the overall economic
19competitiveness of this state.
The agency shall make the determination required
20under this paragraph by doing all of the following:
SB887,142
21Section
142. 227.137 (3) (e) 1. to 4. of the statutes are created to read:
SB887,104,2322
227.137
(3) (e) 1. Compiling a list of affected persons and potential economic
23concerns identified in the comments solicited by the agency.
SB887,104,2424
2. Contacting affected persons to discuss economic concerns.
SB887,104,2525
3. Considering any raised concerns in drafting the economic impact analysis.
SB887,105,3
14. Documenting in the economic impact analysis the persons who were
2consulted and whether the agency's determination is disputed by any of the affected
3persons.
SB887,143
4Section 143
. 227.137 (3m) of the statutes is created to read:
SB887,105,165
227.137
(3m) (a) When soliciting comments under sub. (3) for an economic
6impact analysis, an agency shall accept comments for a period of at least 14 calendar
7days if, under s. 227.135 (1) (g), the statement of scope for the proposed rule indicates
8that the proposed rule will have minimal or no economic impact, at least 30 calendar
9days if it indicates a moderate economic impact, and at least 60 calendar days if it
10indicates a significant economic impact or if the agency anticipates that the proposed
11rule will result in $10,000,000 or more in implementation and compliance costs being
12incurred by or passed along to businesses, local governmental units, and individuals
13over any 2-year period. If the agency subsequently determines that the anticipated
14economic impact will be greater than indicated in the statement of scope, the agency
15shall adjust the comment period accordingly. An agency may not reduce a comment
16period once determined under this subsection.
SB887,105,1817
(b) This subsection does not apply to a person preparing an independent
18economic impact analysis under sub. (4m).
SB887,144
19Section 144
. 227.137 (4) of the statutes is amended to read:
SB887,106,1220
227.137
(4) On the same day that the agency submits the economic impact
21analysis to the legislative council staff under s. 227.15 (1), the agency shall also
22submit that analysis to the department of administration, to the governor, and to the
23chief clerks of each house of the legislature, who shall distribute the analysis to the
24presiding officers of their respective houses, to the chairpersons of the appropriate
25standing committees of their respective houses, as designated by those presiding
1officers, and to the cochairpersons of the joint committee for review of administrative
2rules. If a proposed rule is modified after the economic impact analysis is submitted
3under this subsection so that the economic impact of the proposed rule is
4significantly changed, the agency shall prepare a revised economic impact analysis
5for the proposed rule as modified.
For purposes of this subsection, a significant
6change includes an increase or a decrease of at least 10 percent or $50,000, whichever
7is greater, in the expected implementation and compliance costs reasonably expected
8to be incurred by or passed along to a majority of the businesses, local governmental
9units, and individuals as a result of the proposed rule, as identified under sub. (3) (b),
10or a significant change in the persons expected to be affected by the proposed rule. 11A revised economic impact analysis shall be prepared and submitted in the same
12manner as an original economic impact analysis is prepared and submitted.
SB887,145
13Section
145. 227.138 (1) (intro.) of the statutes is renumbered 227.138 (1) and
14amended to read:
SB887,106,2015
227.138
(1) The joint committee for review of administrative rules may direct
16an agency to prepare a retrospective economic impact analysis for any of an agency's
17rules that are published in the code. The committee may identify one or more specific
18chapters, sections, or other subunits in the code that are administered by the agency
19as the rules that are to be the subject of the analysis and may specify a deadline for
20the preparation of the analysis.
SB887,107,7
21(1r) A retrospective economic impact analysis shall contain information on the
22economic effect of the rules on specific businesses, business sectors, public utility
23ratepayers, local governmental units, and the state's economy as a whole. When
24preparing the analysis, the agency
or person preparing the analysis shall solicit
25information and advice from businesses, associations representing businesses, local
1governmental units, and individuals that have been affected by the rules. The
2agency
or person shall prepare the retrospective economic impact analysis in
3coordination with local governmental units that have been affected by the rules. The
4agency
or person may request information that is reasonably necessary for the
5preparation of a retrospective economic impact analysis from other businesses,
6associations, local governmental units, and individuals and from other agencies.
7The retrospective economic impact analysis shall include all of the following:
SB887,146
8Section 146
. 227.138 (1) (a) to (h) of the statutes are renumbered 227.138 (1r)
9(a) to (h).
SB887,147
10Section
147. 227.138 (1g) of the statutes is created to read:
SB887,107,1911
227.138
(1g) Within 90 days
after an agency submits a retrospective economic
12impact analysis under sub. (2), either cochairperson of the joint committee for review
13of administrative rules may request an independent retrospective economic impact
14analysis to be prepared using the same procedure and payment methods described
15under s. 227.137 (4m) (am) and (b). A person preparing an independent retrospective
16economic impact analysis under this subsection shall prepare the independent
17retrospective economic impact analysis for the same rules that were the subject of
18the agency's analysis under sub. (1) and shall include the information that is
19required under sub. (1r).
SB887,148
20Section 148
. 227.138 (2) of the statutes is amended to read:
SB887,108,521
227.138
(2) An agency
or person that prepares a retrospective economic impact
22analysis under sub. (1)
or (1g) shall submit that analysis to the department of
23administration, to the governor, and to the chief clerks of each house of the
24legislature, who shall distribute the analysis to the presiding officers of their
25respective houses, to the chairpersons of the appropriate standing committees of
1their respective houses, as designated by those presiding officers, and to the
2cochairpersons of the joint committee for review of administrative rules. The agency
3or person shall also send an electronic copy of the analysis to the legislative reference
4bureau, in a format approved by the legislative reference bureau, for publication in
5the register.
SB887,149
6Section 149
. 227.18 (3m) of the statutes is created to read:
SB887,108,87
227.18
(3m) If, after holding a hearing under this section, an agency makes any
8changes to the proposed rule, the agency shall do all of the following:
SB887,108,119
(a) Review the statement of scope of the proposed rule prepared under s.
10227.135 to determine whether a revised statement of scope is required under s.
11227.135 (4).
SB887,108,1412
(b) Review the economic impact analysis for the proposed rule prepared under
13s. 227.137 to determine whether a revised economic impact analysis is required
14under s. 227.137 (4).
SB887,150
15Section 150
. 227.185 of the statutes is amended to read:
SB887,108,24
16227.185 Approval by governor. After a proposed rule is in final draft form,
17the agency shall submit the proposed rule to the governor for approval. The governor,
18in his or her discretion, may approve or reject the proposed rule. If the governor
19approves a proposed rule, the governor shall provide the agency with a written notice
20of that approval. No proposed rule may be submitted to the legislature for review
21under s. 227.19 (2) unless the governor has approved the proposed rule in writing.
22The agency shall notify the joint committee for review of administrative rules
23whenever it submits a proposed rule for approval under this section.
This section
24does not apply to proposed rules prepared by the department of public instruction.
SB887,151
25Section
151. 227.20 (3) (a) of the statutes is amended to read:
SB887,109,1
1227.20
(3) (a) That the rule was
duly promulgated by the agency.
SB887,152
2Section
152. 227.20 (3) (c) of the statutes is repealed.
SB887,153
3Section 153
. 227.24 (1) (e) 1d. of the statutes is amended to read:
SB887,109,164
227.24
(1) (e) 1d. Prepare a statement of the scope of the proposed emergency
5rule as provided in s. 227.135 (1), obtain approval of the statement as provided in s.
6227.135 (2), send the statement to the legislative reference bureau for publication in
7the register as provided in s. 227.135 (3), and hold a preliminary public hearing and
8comment period if directed under s. 227.136 (1). If the agency changes the scope of
9a proposed emergency rule as described in s. 227.135 (4), the agency shall prepare
10and obtain approval of a revised statement of the scope of the proposed emergency
11rule as provided in s. 227.135 (4). No state employee or official may perform any
12activity in connection with the drafting of a proposed emergency rule
, except for an
13activity necessary to prepare the statement of the scope of the proposed emergency
14rule
, until the governor
approves the statement, if such approval is required, and the
15individual or body with policy-making powers over the subject matter of the
16proposed emergency rule
approve approves the statement.
SB887,154
17Section 154
. 227.24 (1) (e) 1g. of the statutes is amended to read:
SB887,109,2518
227.24
(1) (e) 1g. Submit the proposed emergency rule in final draft form to the
19governor for approval. The governor, in his or her discretion, may approve or reject
20the proposed emergency rule. If the governor approves a proposed emergency rule,
21the governor shall provide the agency with a written notice of that approval. An
22agency may not file an emergency rule with the legislative reference bureau as
23provided in s. 227.20 and an emergency rule may not be published until the governor
24approves the emergency rule in writing.
This subdivision does not apply to proposed
25emergency rules of the department of public instruction.
SB887,155
1Section
155. 227.26 (2) (im) of the statutes is created to read:
SB887,110,42
227.26
(2) (im)
Multiple suspensions. Notwithstanding pars. (i) and (j), the
3committee may act to suspend a rule as provided under this subsection multiple
4times.
SB887,156
5Section 156
. 227.40 (1) of the statutes is amended to read:
SB887,110,226
227.40
(1) Except as provided in sub. (2), the exclusive means of judicial review
7of the validity of a rule
or guidance document shall be an action for declaratory
8judgment as to the validity of the rule
or guidance document brought in the circuit
9court for the county where the party asserting the invalidity of the rule
or guidance
10document resides or has its principal place of business or, if that party is a
11nonresident or does not have its principal place of business in this state, in the circuit
12court for the county where the dispute arose. The officer or other agency whose rule
13or guidance document is involved shall be the party defendant. The summons in the
14action shall be served as provided in s. 801.11 (3) and by delivering a copy to that
15officer or, if the agency is composed of more than one person, to the secretary or clerk
16of the agency or to any member of the agency. The court shall render a declaratory
17judgment in the action only when it appears from the complaint and the supporting
18evidence that the rule
or guidance document or its threatened application interferes
19with or impairs, or threatens to interfere with or impair, the legal rights and
20privileges of the plaintiff. A declaratory judgment may be rendered whether or not
21the plaintiff has first requested the agency to pass upon the validity of the rule
or
22guidance document in question.
SB887,157
23Section 157
. 227.40 (2) (intro.) of the statutes is amended to read:
SB887,110,2524
227.40
(2) (intro.) The validity of a rule
or guidance document may be
25determined in any of the following judicial proceedings when material therein:
SB887,158
1Section
158. 227.40 (2) (e) of the statutes is amended to read:
SB887,111,62
227.40
(2) (e) Proceedings under s. 66.191, 1981 stats., or s. 40.65 (2), 106.50,
3106.52, 303.07 (7) or 303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or 949 for
4review of decisions and orders of administrative agencies if the validity of the rule
5or guidance document involved was duly challenged in the proceeding before the
6agency in which the order or decision sought to be reviewed was made or entered.
SB887,159
7Section 159
. 227.40 (3) (intro.) of the statutes is renumbered 227.40 (3) (ag)
8and amended to read:
SB887,111,189
227.40
(3) (ag) In any judicial proceeding other than one
set out above under
10sub. (1) or (2), in which the invalidity of a rule
or guidance document is material to
11the cause of action or any defense thereto, the assertion of
such that invalidity shall
12be set forth in the pleading of the party
so maintaining the invalidity of
such the rule
13or guidance document in that proceeding. The party
so asserting the invalidity of
14such the rule
or guidance document shall, within 30 days after the service of the
15pleading in which the party sets forth
such the invalidity, apply to the court in which
16such the proceedings are had for an order suspending the trial of
said the proceeding
17until after a determination of the validity of
said
the rule
or guidance document in
18an action for declaratory judgment under sub. (1)
hereof.
SB887,160
19Section 160
. 227.40 (3) (a) of the statutes is renumbered 227.40 (3) (ar) and
20amended to read:
SB887,112,221
227.40
(3) (ar) Upon the hearing of
such the application
, if the court is satisfied
22that the validity of
such the rule
or guidance document is material to the issues of
23the case, an order shall be entered staying the trial of said proceeding until the
24rendition of a final declaratory judgment in proceedings to be instituted forthwith
25by the party asserting the invalidity of
such
the rule
or guidance document. If the
1court
shall find finds that the asserted invalidity of
a the rule
or guidance document 2is not material to the case, an order shall be entered denying the application for stay.
SB887,161
3Section 161
. 227.40 (3) (b) and (c) of the statutes are amended to read:
SB887,112,104
227.40
(3) (b) Upon the entry of a final order in
said the declaratory judgment
5action, it shall be the duty of the party who asserts the invalidity of the rule
or
6guidance document to formally advise the court of the outcome of the declaratory
7judgment action so brought as ordered by the court. After the final disposition of the
8declaratory judgment action the court shall be bound by and apply the judgment so
9entered in the trial of the proceeding in which the invalidity of the rule
or guidance
10document is asserted.
SB887,112,1511
(c) Failure to set forth
the invalidity of a rule
or guidance document in a
12pleading or to commence a declaratory judgment proceeding within a reasonable
13time pursuant to
such the order of the court or to prosecute
such the declaratory
14judgment action without undue delay shall preclude
such the party from asserting
15or maintaining
such that the rule
or guidance document is invalid.
SB887,162
16Section 162
. 227.40 (4) (a) of the statutes is amended to read:
SB887,112,2117
227.40
(4) (a) In any proceeding pursuant to this section for judicial review of
18a rule
or guidance document, the court shall declare the rule
or guidance document 19invalid if it finds that it violates constitutional provisions or exceeds the statutory
20authority of the agency or was promulgated
or adopted without compliance with
21statutory rule-making
or adoption procedures.
SB887,163
22Section 163
. 227.40 (6) of the statutes is amended to read:
SB887,113,423
227.40
(6) Upon entry of a final order in a declaratory judgment action under
24sub. (1)
with respect to a rule, the court shall send an electronic notice to the
25legislative reference bureau of the court's determination as to the validity or
1invalidity of the rule, in a format approved by the legislative reference bureau, and
2the legislative reference bureau shall publish a notice of that determination in the
3Wisconsin administrative register under s. 35.93 (2) and insert an annotation of that
4determination in the Wisconsin administrative code under s. 13.92 (4) (a).
SB887,164
5Section
164. 227.46 (1) (h) of the statutes is amended to read:
SB887,113,76
227.46
(1) (h)
Make or recommend
Recommend findings of fact, conclusions of
7law and decisions to the extent permitted by law.
SB887,165
8Section
165. 227.46 (2) of the statutes is amended to read:
SB887,113,229
227.46
(2) Except as provided in sub. (2m) and s. 227.47 (2), in any contested
10case which is a class 2 or class 3 proceeding, where a majority of the officials of the
11agency who are to render the final decision are not present for the hearing, the
12hearing examiner presiding at the hearing shall prepare a proposed decision,
13including findings of fact, conclusions of law, order and opinion, in a form that may
14be adopted
by the agency as the final decision in the case
under s. 227.47 (3). The
15proposed decision shall be a part of the record and shall be served by the agency on
16all parties. Each party adversely affected by the proposed decision shall be given an
17opportunity to file objections to the proposed decision, briefly stating the reasons and
18authorities for each objection, and to argue with respect to them before the officials
19who are to participate in the decision. The agency may direct whether such
20argument shall be written or oral. If an agency's decision varies in any respect from
21the
proposed decision of the hearing examiner, the agency's decision shall include an
22explanation of the basis for each variance.
SB887,166
23Section
166. 227.46 (2m) of the statutes is amended to read:
SB887,114,1624
227.46
(2m) In any hearing or review assigned to a hearing examiner under
25s. 227.43 (1) (bg), the hearing examiner presiding at the hearing shall prepare a
1proposed decision, including findings of fact, conclusions of law, order and opinion,
2in a form that may be adopted
by the agency as the final decision in the case
under
3s. 227.47 (3). The proposed decision shall be a part of the record and shall be served
4by the division of hearings and appeals in the department of administration on all
5parties. Each party adversely affected by the proposed decision shall be given an
6opportunity to file objections to the proposed decision within 15 days, briefly stating
7the reasons and authorities for each objection, and to argue with respect to them
8before the administrator of the division of hearings and appeals. The administrator
9of the division of hearings and appeals may direct whether such argument shall be
10written or oral. If the decision of the administrator of the division of hearings and
11appeals varies in any respect from the
proposed decision of the hearing examiner, the
12decision of the administrator of the division of hearings and appeals shall include an
13explanation of the basis for each variance. The decision of the administrator of the
14division of hearings and appeals is a final decision of the agency subject to judicial
15review under s. 227.52. The department of transportation may petition for judicial
16review.
SB887,167
17Section
167. 227.46 (3) (a) of the statutes is repealed.
SB887,168
18Section
168. 227.46 (8) of the statutes is repealed.
SB887,169
19Section
169. 227.47 (1) of the statutes is amended to read:
SB887,115,320
227.47
(1) Except as provided in sub. (2), every proposed
or final decision of
an
21agency or a hearing examiner following a hearing and every final decision of an
22agency shall be in writing accompanied by findings of fact and conclusions of law.
23The findings of fact shall consist of a concise and separate statement of the ultimate
24conclusions upon each material issue of fact without recital of evidence. Every
25proposed or final decision shall include a list of the names and addresses of all
1persons who appeared before the agency in the proceeding who are considered
2parties for purposes of review under s. 227.53. The agency shall by rule establish a
3procedure for determination of parties.
SB887,170
4Section
170. 227.47 (3) of the statutes is created to read: