January 2011 Special Session Date of enactment:
May 23, 2011
Assembly Bill 8 Date of publication*:
June 7, 2011
2011 WISCONSIN ACT 21
An Act to repeal 227.137 (1), 227.137 (2) (a), 227.137 (2) (b), 227.138 (title) and (1), 227.138 (4) and 227.19 (5) (b) 3.; to renumber 227.138 (2) (b), 227.138 (2) (c), 227.138 (2) (d) and 227.24 (1) (e) 1.; to renumber and amend 227.11 (2) (a), 227.137 (2) (intro.), 227.138 (2) (intro.), 227.138 (2) (a) and 227.138 (3); to amend 13.92 (4) (a), 35.93 (4), 227.135 (2), 227.135 (3), 227.137 (title), 227.137 (3) (intro.), 227.137 (3) (a), 227.137 (3) (b), 227.137 (3) (c), 227.137 (4), 227.14 (2) (a) 6., 227.15 (1), 227.19 (2), 227.19 (3) (intro.), 227.19 (4) (b) 1. (intro.), 227.19 (4) (b) 2., 227.19 (4) (b) 2m., 227.19 (4) (b) 3., 227.19 (4) (b) 3m., 227.19 (4) (b) 5., 227.19 (4) (b) 6., 227.19 (4) (c), 227.19 (4) (d) (intro.), 227.19 (5) (a), 227.19 (5) (b) 1. (intro.), 227.19 (5) (b) 2., 227.19 (5) (b) 4., 227.19 (5) (c), 227.19 (5) (d), 227.19 (5) (e), 227.19 (5) (f), 227.19 (5) (g) (intro.), 227.19 (6) (a) 1., 227.19 (6) (a) 4., 227.40 (1) and 801.50 (3); to repeal and recreate 227.135 (4) and 227.19 (4) (e); and to create 227.10 (2m), 227.11 (2) (a) 1. to 3., 227.137 (3) (d), 227.137 (3) (e), 227.15 (1m) (bm), 227.17 (3) (em), 227.185, 227.19 (4) (b) 1m., 227.19 (5) (b) 1m., 227.24 (1) (e) 1d., 227.24 (1) (e) 1g. and 227.40 (6) of the statutes; relating to: the authority of a state agency to promulgate rules interpreting the provisions of a statute enforced or administered by the agency and to implement or enforce any standard, requirement, or threshold as a term or condition of a license issued by the state agency; gubernatorial approval of proposed administrative rules; economic impact analyses of proposed rules and emergency rules; legislative review of proposed rules; and venue in a declaratory judgment action seeking judicial review of the validity of an administrative rule and in an action in which the sole defendant is the state.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
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Section 1g. 13.92 (4) (a) of the statutes is amended to read:
13.92 (4) (a) The legislative reference bureau shall prepare copy for publication in the Wisconsin administrative code. Whenever the legislative reference bureau receives notice under s. 227.40 (6) of the entry of a declaratory judgment determining the validity or invalidity of a rule, the legislative reference bureau shall insert an annotation of that determination in the Wisconsin administrative code under the rule that was the subject of the determination.
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Section 1m. 35.93 (4) of the statutes is amended to read:
35.93 (4) Each issue of the Wisconsin administrative register shall contain a notice section in which shall be printed the notices of hearings on rule making which agencies have transmitted to the legislative reference bureau for that purpose, statements of scope of proposed rules under s. 227.135, notices of submittal to the legislative council staff under s. 227.14 (4m), notices of intent to promulgate rules without a public hearing under s. 227.16 (2) (e), notices of referrals of proposed rules to presiding officers under s. 227.19 (2), notices of emergency rules in effect, fiscal estimates for rule-making orders under s. 227.14 (4), notices of declaratory judgments received under s. 227.40 (6), and such other notices as may be required by law or determined by the legislative reference bureau to be appropriate.
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Section 1r. 227.10 (2m) of the statutes is created to read:
227.10 (2m) No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter. The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter.
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2. 227.11 (2) (a) of the statutes is renumbered 227.11 (2) (a) (intro.) and amended to read:
227.11 (2) (a) (intro.) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if it the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
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3. 227.11 (2) (a) 1. to 3. of the statutes are created to read:
227.11 (2) (a) 1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
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4. 227.135 (2) of the statutes is amended to read:
227.135 (2) Until 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 a the proposed rule approves a statement of the scope of the proposed rule, a state employee or official may not perform any activity in connection with drafting the proposed rule except for an activity necessary to prepare the statement for approval. 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 a
the statement until at least 10 days after publication of the statement in the register as required under sub. (3). If the individual or body with policy-making powers does not disapprove the statement within 30 days after the statement is presented to the individual or body, or by the 11th day after publication of the statement in the register, whichever is later, the statement is considered to be approved 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 approves the statement.
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5. 227.135 (3) of the statutes is amended to read:
227.135 (3) The agency shall send the
If the governor approves a statement of the scope of a proposed rule under sub. (2), the agency shall send the statement to 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.
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6. 227.135 (4) of the statutes is repealed and recreated to read:
227.135 (4) 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 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.
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7. 227.137 (title) of the statutes is amended to read:
227.137 (title) Economic impact reports analyses of proposed rules.
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8. 227.137 (1) of the statutes is repealed.
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9. 227.137 (2) (intro.) of the statutes is renumbered 227.137 (2) and amended to read:
227.137 (2) After an agency publishes a statement of the scope of a proposed rule under s. 227.135, and before the agency submits the proposed rule to the legislature for review under s. 227.19 (2), a municipality, an association that represents a farm, labor, business, or professional group, or 5 or more persons that would be directly and uniquely affected by the proposed rule may submit a petition to the department of administration asking that the secretary of administration direct the agency to prepare an economic impact report for the proposed rule. The An agency shall prepare an economic impact report analysis for a proposed rule before submitting the proposed rule to the legislature for review under s. 227.19 (2) if the secretary of administration directs the agency to prepare that report. The secretary of administration may direct the agency to prepare an economic impact report for the proposed rule before submitting the proposed rule to the legislature for review under s. 227.19 (2). The secretary of administration shall direct the agency to prepare an economic impact report for the proposed rule before submitting the proposed rule to the legislature for review under s. 227.19 (2) if the secretary determines that all of the following apply: legislative council staff under s. 227.15.
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10. 227.137 (2) (a) of the statutes is repealed.
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11. 227.137 (2) (b) of the statutes is repealed.
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12. 227.137 (3) (intro.) of the statutes is amended to read:
227.137 (3) (intro.) An economic impact report 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, and the state's economy as a whole. When preparing the report analysis, the agency shall solicit information and advice from the department of commerce, and from governmental units, associations, businesses, associations representing businesses, local governmental units, and individuals that may be affected by the proposed rule. The agency shall prepare the economic impact analysis in coordination with local governmental units that may be affected by the proposed rule. The agency may request information that is reasonably necessary for the preparation of an economic impact report analysis from other state agencies, governmental units, associations, businesses, associations, local governmental units, and individuals and from other agencies. The economic impact report analysis shall include all of the following:
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13. 227.137 (3) (a) of the statutes is amended to read:
227.137 (3) (a) An analysis and quantification of the policy problem, including any risks to public health or the environment, 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 the approach chosen by the agency to address that policy problem is different from those approaches, a statement as to why the agency chose a different approach.
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14. 227.137 (3) (b) of the statutes is amended to read:
227.137 (3) (b) 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 the state, governmental units, associations, or passed along to the businesses, local governmental units, and affected individuals that may be affected by the proposed rule.
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15. 227.137 (3) (c) of the statutes is amended to read:
227.137 (3) (c) An analysis of the actual and quantifiable benefits of the proposed rule, including
how the rule reduces the risks and addresses the problems an assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.
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16. 227.137 (3) (d) of the statutes is created to read:
227.137 (3) (d) An analysis of alternatives to the proposed rule, including the alternative of not promulgating the proposed rule.
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17. 227.137 (3) (e) of the statutes is created to read:
227.137 (3) (e) 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.
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18. 227.137 (4) of the statutes is amended to read:
227.137 (4) The On the same day that the agency shall submit submits the economic impact report analysis to the legislative council staff, under s. 227.15 (1), the agency shall also submit that analysis to the department of administration, and to the petitioner 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. A revised economic impact analysis shall be prepared and submitted in the same manner as an original economic impact analysis is prepared and submitted.
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20. 227.138 (title) and (1) of the statutes are repealed.
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21. 227.138 (2) (intro.) of the statutes is renumbered 227.137 (6) (intro.) and amended to read:
227.137 (6) (intro.) If an economic impact report will be prepared under s. 227.137 (2) analysis regarding a proposed rule indicates that a total of $20,000,000 or more in implementation and compliance costs are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals as a result of the proposed rule, the department of administration shall review the proposed rule and issue a report. The agency shall may not submit a proposed rule to the legislature for review under s. 227.19 (2) until the agency receives a copy of the department's report and the approval of the secretary of administration. The report shall include all of the following findings:
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22. 227.138 (2) (a) of the statutes is renumbered 227.138 (6) (a) and amended to read:
227.138 (6) (a) That the economic impact report and the analysis required under s. 227.137 (3) are
is supported by related documentation contained or referenced in the economic impact report analysis.
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23. 227.138 (2) (b) of the statutes is renumbered 227.137 (6) (b).
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24. 227.138 (2) (c) of the statutes is renumbered 227.137 (6) (c).
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25. 227.138 (2) (d) of the statutes is renumbered 227.137 (6) (d).
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26. 227.138 (3) of the statutes is renumbered 227.137 (7) and amended to read:
227.137 (7) Before issuing a report under sub. (2) (6), the department of administration may return a proposed rule to the agency for further consideration and revision with a written explanation of why the proposed rule is being returned. If the agency head disagrees with the department's reasons for returning the proposed rule, the agency head shall so notify the department in writing. The secretary of administration shall approve the proposed rule when the agency has adequately addressed the issues raised during the department's review of the rule.
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27. 227.138 (4) of the statutes is repealed.
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28. 227.14 (2) (a) 6. of the statutes is amended to read:
227.14 (2) (a) 6. Any analysis and supporting documentation that the agency used in support of the agency's determination of the rule's effect on small businesses under s. 227.114 or that was used when the agency prepared an economic impact report analysis under s. 227.137 (3).
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29. 227.15 (1) of the statutes is amended to read:
227.15 (1) Submittal to legislative council staff. Prior to a public hearing on a proposed rule or, if no public hearing is required, prior to notice under s. 227.19, an agency shall submit the proposed rule to the legislative council staff for review. The proposed rule shall be in the form required under s. 227.14 (1), and shall include the material required under s. 227.14 (2) to (4), (3), and (4), the economic impact analysis required under s. 227.137 (2), and any revised economic impact analysis required under s. 227.137 (4). An agency may not hold a public hearing on a proposed rule or give notice under s. 227.19 until after it has received a written report of the legislative council staff review of the proposed rule or until after the initial review period of 20 working days under sub. (2) (intro.), whichever comes first. An agency may give notice of a public hearing prior to receipt of the legislative council staff report. This subsection does not apply to rules promulgated under s. 227.24.
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30. 227.15 (1m) (bm) of the statutes is created to read:
227.15 (1m) (bm) The economic impact analysis required under s. 227.137 (2) and any revised economic impact analysis required under s. 227.137 (4).
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31. 227.17 (3) (em) of the statutes is created to read:
227.17 (3) (em) The economic impact analysis required under s. 227.137 (2), any revised economic impact analysis required under s. 227.137 (4), and any report prepared by the department of administration under s. 227.137 (6), or a summary of that analysis and report and a description of how a copy of the full analysis and report may be obtained from the agency at no charge.
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32. 227.185 of the statutes is created to read:
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.
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33. 227.19 (2) of the statutes is amended to read:
227.19 (2) Notification of legislature. An agency shall submit a notice to the chief clerk of each house of the legislature when a proposed rule is in final draft form. The notice shall be submitted in triplicate and shall be accompanied by a report in the form specified under sub. (3). A notice received under this subsection on or after September 1 of an even-numbered year the last day of the legislature's final general-business floorperiod in the biennial session as established in the joint resolution required under s. 13.02 (3) shall be considered received on the first day of the next regular session of the legislature, unless the presiding officers of both houses direct referral of the notice and report under this subsection before that day. The presiding officer of each house of the legislature shall, within 10 working days following the day on which the notice and report are received, direct the appropriate chief clerk to refer them the notice and report to one standing committee. The agency shall submit to the legislative reference bureau for publication in the register a statement that a proposed rule has been submitted to the chief clerk of each house of the legislature. Each chief clerk shall enter a similar statement in the journal of his or her house.
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34. 227.19 (3) (intro.) of the statutes is amended to read:
227.19 (3) Form of report. (intro.) The report required under sub. (2) shall be in writing and shall include the proposed rule in the form specified in s. 227.14 (1), the material specified in s. 227.14 (2) to
, (3), and (4), a copy of any economic impact report
analysis prepared by the agency under s. 227.137 (2), a copy of any revised economic impact analysis prepared by the agency under s. 227.137 (4), a copy of any report prepared by the department of administration under s. 227.138 227.137 (6), a copy of any energy impact report received from the public service commission under s. 227.117 (2), and a copy of any recommendations of the legislative council staff. The report shall also include all of the following:
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35. 227.19 (4) (b) 1. (intro.) of the statutes is amended to read:
227.19 (4) (b) 1. (intro.) Except as provided under subd. subds. 1m. and 5., the committee review period for each committee extends for 30 days after referral of the proposed rule to the committee under sub. (2). If the chairperson or the cochairpersons of a committee take either of the following actions within the 30-day period, the committee review period for that committee is continued for 30 days from the date on which the first 30-day review period would have expired:
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36. 227.19 (4) (b) 1m. of the statutes is created to read:
227.19 (4) (b) 1m. Except as provided under subd. 5., if a notice and report received under sub. (2) after the last day of the legislature's final general-business floorperiod as specified in sub. (2) is referred for committee review before the first day of the next regular session of the legislature, the committee review period for each committee to which the proposed rule is referred extends to the day specified under s. 13.02 (1) for the next legislature to convene.
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37. 227.19 (4) (b) 2. of the statutes is amended to read:
227.19 (4) (b) 2. If a committee, by a majority vote of a quorum of the committee, requests modifications in a proposed rule, and the agency, in writing, agrees to consider making modifications, the review period for both committees to which the proposed rule is referred is extended either to the 10th working day following receipt by the those committees of the modified proposed rule or a written statement to the committee those committees that the agency will not make the modifications or to the expiration of the review period under subd. 1. or, if applicable, subd. 1m., whichever is later. There is no limit either on the number of modification agreements that may be entered into or on the time within which modifications may be made.
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38. 227.19 (4) (b) 2m. of the statutes is amended to read:
227.19 (4) (b) 2m. If a committee requests in writing that the public service commission determine the rule's impact on the cost or reliability of electricity generation, transmission, or distribution or of fuels used in generating electricity, the commission shall prepare an energy impact report in the manner provided under s. 227.117 (1). The commission shall submit a copy of the report to the committee and to the agency that proposed the rule within 30 days after the written request is submitted to the commission. The review period for both committees to which the proposed rule is referred is extended to the 10th working day following receipt by the those committees of the report, to the expiration of the review period under subd. 1. or, if applicable, subd. 1m., or to the expiration of the review period under subd. 2., whichever is later.
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39. 227.19 (4) (b) 3. of the statutes is amended to read:
227.19 (4) (b) 3. An agency may, on its own initiative, submit a germane modification to a proposed rule to a committee during its review period. If a germane modification is submitted within the final 10 days of a committee review period under subd. 1., the review period for both committees to which the proposed rule is referred is extended for 10 working days. If a germane modification is submitted to a committee after the committee in the other house has concluded its jurisdiction over the proposed rule, the jurisdiction of the committee of the other house is revived for 10 working days. In this subdivision, an agency's proposal to delete part of a proposed rule under committee review shall be treated as a germane modification of the proposed rule.
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40. 227.19 (4) (b) 3m. of the statutes is amended to read:
227.19 (4) (b) 3m. An agency may, during the committee review period, reconsider its action by recalling the proposed rule from the chief clerk of each house of the legislature. If the agency decides to continue the rule-making process with regard to the proposed rule, it
the agency shall resubmit the proposed rule, either in its recalled form or with one or more germane modifications, to the chief clerk in each house of the legislature as provided in sub. (2) and the committee review period under subd. 1. or, if applicable, subd. 1m. shall begin again.
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41. 227.19 (4) (b) 5. of the statutes is amended to read:
227.19 (4) (b) 5. If a committee in one house votes to object to a proposed rule or to a part of the proposed rule under par. (d), the chairperson or cochairpersons of the committee shall immediately notify the chairperson or cochairpersons of the committee in the other house to which the proposed rule was referred in the other house. Upon receipt of the notice, the review period for the committee in the other house immediately ceases and no further action on the proposed rule or part of the proposed rule objected to may be taken under this paragraph by that committee, but the committee may proceed under par. (d) to object to the proposed rule or part of the proposed rule.
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42. 227.19 (4) (b) 6. of the statutes is amended to read:
227.19 (4) (b) 6. If a committee has not concluded its jurisdiction over a proposed rule or a part of a proposed rule before the day specified under s. 13.02 (1) for the next legislature to convene, that jurisdiction immediately ceases and, within 10 working days after that date, the presiding officer of the appropriate house shall refer the proposed rule or part of the proposed rule to the appropriate standing committee of the next legislature as provided under sub. (2). The If a committee review period that was is interrupted by the loss of jurisdiction under this subdivision continues, a new committee review period as provided in subd. 1. shall begin for the committee to which the proposed rule or part of the proposed rule is referred under this subdivision beginning on the date of referral under this subdivision.
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43. 227.19 (4) (c) of the statutes is amended to read:
227.19 (4) (c) Agency not to promulgate rule during Waiver of committee review. An agency may not promulgate a proposed rule during the committee review period unless both committees waive jurisdiction over the proposed rule prior to the expiration of the review period. A committee may waive its jurisdiction over a proposed rule prior to the expiration of the committee review period by adopting, by a majority vote of a quorum of the committee, a motion waiving the committee's jurisdiction.
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44. 227.19 (4) (d) (intro.) of the statutes is amended to read:
