Amendment JR1 ASA1-AB8

This substitute amendment requires any state agency to prepare an economic impact analysis, rather than a report, before the agency may submit any proposed rule to the legislative council staff for review, which must be done before a public hearing is held on the proposed rule or, if no public hearing is held, before the proposed rule is submitted to the legislature for review.

The substitute amendment also requires certain additional information to be included in an economic impact analysis. Specifically, in addition to the information that must be included in an economic impact report under current law, an economic impact analysis must also include:

1. Information on the effect of a proposed rule on public utility ratepayers.

2. An analysis of alternative to the proposed rule, including the alternative of not promulgating the rule.

3. A determination made in consultation with the businesses 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.

4. Comparisons with the approaches used by the federal government and by Illinois, Iowa, Michigan, and Minnesota to address the policy problem that the proposed rule is intending to address 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.

5. An assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.

In addition, the substitute amendment requires all of the following:

1. An agency to submit an economic impact statement not only to the legislative council staff and DOA as under current law but also to the governor and to the chief clerk of each house of the legislature for distribution to the presiding officers of each house, the chairpersons of the appropriate standing committees of each house, and the cochairpersons of the Joint Committee for Review of Administrative Rules (JCRAR).

2. DOA to issue a report on a proposed rule, and the secretary to approve a proposed rule, if the economic impact analysis 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 and individuals as a result of the proposed rule.

3. An agency to prepare a revised economic impact analysis if a proposed rule is modified after the original economic impact analysis is submitted so as to significantly change the economic impact of the proposed rule.

4. The legislative council staff to provide on its Internet site an economic impact analysis submitted to the legislative council staff or a link to that analysis.

5. A notice of a public hearing on a proposed rule to include the economic impact analysis for the proposed rule and any report on the proposed rule prepared by DOA, or a summary of that analysis and report and a description of how the full analysis and report may be obtained from the agency at no charge.

6. An agency to prepare an economic impact analysis for a proposed emergency rule and to submit that analysis to DOA, to the governor, and to the chief clerks of each house of the legislature for distribution to the presiding officers of each house, to the chairpersons of the appropriate standing committees of each house, and to the cochairpersons of JCRAR. If the economic impact analysis 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 and individuals as a result of the proposed emergency rule, DOA must review the proposed rule and issue a report, and the agency may not file the proposed emergency rule with the LRB until the agency receives a copy of that report and the approval of the secretary.

Legislative review of proposed rules

Under current law, when a proposed rule is in final form, the agency must notify the legislature as to that fact and the presiding officer of each house of the legislature must then direct the proposed rule to be referred to one standing committee of his or her house. If that notice is received on or after September 1 of an even-numbered year, the notice is considered received on the first day of the next regular session of the legislature, which means that legislative review of the proposed rule is deferred to the next legislature. A standing committee to which a proposed rule is referred then has 30 days after referral within which to review the proposed rule (committee review period). During the committee review period, a standing committee may request modifications to the proposed rule, waive its jurisdiction over the proposed rule, or object to the proposed rule.

If a standing committee objects to a proposed rule, the proposed rule and objection are referred to JCRAR, which also has a 30-day committee review period within which JCRAR must meet in executive session to take action on the standing committee's objections, which actions include requesting modifications to the proposed rule, nonconcurring in the standing committee's objection to the proposed rule, or objecting to the proposed rule. If JCRAR nonconcurs in the standing committee's objection, the agency may promulgate the rule. If JCRAR objects to the proposed rule, JCRAR must introduce bills in each house of the legislature to prevent promulgation of the rule and the agency may not promulgate the rule until those bills fail to be enacted.

This substitute amendment changes the date by which a proposed rule must be submitted to the legislature in order for the proposed rule to be reviewed by the current legislature, from September 1 of an even-numbered year to the last day of the legislature's final general-business floorperiod of the biennial session. The substitute amendment, however, permits the presiding officers of both houses of the legislature to refer a proposed rule submitted to the legislature after that date for review by the standing committees and JCRAR of the current legislature. For a proposed rule referred for review after that date, the committee review period extends to the day on which the next legislature convenes. Also, for such a proposed rule, the substitute amendment permits JCRAR to meet and take action in executive session. Under the substitute amendment, if JCRAR does meet in executive session with respect to a proposed rule or a part of a proposed rule to which a standing committee has objected, JCRAR must take action with respect to the standing committees objections.

In addition, the substitute amendment requires all proposed rules reviewed by a standing committee to be referred to JCRAR for review, regardless of whether a standing committee has objected to the proposed rule or part of the proposed rule. The substitute amendment also provides that the committee review period for JCRAR extends for 30 days after the last referral of a proposed rule to JCRAR. In addition, the substitute amendment permits JCRAR to meet and take action in executive session with respect to a rule or a part of a rule to which no standing committee has objected. Moreover, the substitute amendment permits JCRAR to request modifications to a proposed rule, nonconcur in a standing committee's objection to a proposed rule, concur in a standing committee's approval of a proposed rule, otherwise approve a proposed rule, waive its jurisdiction over a proposed rule, or object to a proposed rule in whole or in part.

Also, under the substitute amendment, if JCRAR objects to a proposed rule or a part of a proposed rule, JCRAR must report the proposed rule or part of the proposed rule and objection to the governor and, within 30 days after that report, the governor must review the proposed rule or part of the proposed rule and objection and may either sustain, nonconcur in, or not act on the objection. If the governor sustains or does not act on the objection, an agency may not promulgate the proposed rule or part of the proposed rule objected to. If the governor nonconcurs in the objection, an agency may not promulgate the proposed rule or part of the proposed rule objected to until a bill introduced by JCRAR to prevent promulgation of the proposed rule fails to be enacted.

Venue in judicial review actions and in actions against state

Under current law, subject to certain exceptions, the exclusive means of judicial review of the validity of a rule is by an action for declaratory judgment as to the validity of the rule brought in the circuit court for Dane County. This substitute amendment permits a declaratory judgment action seeking judicial review of the validity of a rule to be brought in the county where the party asserting the invalidity of the rule resides or has its principal place of business.

Under current law, any civil action or special proceeding in which the state, a state board or commission, or a state officer, employee, or agent acting in his or her official capacity is the sole defendant, is venued in Dane County. Under the substitute amendment, those actions are venued in the county where the plaintiff resides unless a different venue is specifically authorized by law. Under the substitute amendment, if a plaintiff is not a resident of the state or is not a natural person, the action is venued in the county where the dispute arose.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB8-ASA1, s. 1 Section 1. 227.10 (2m) of the statutes is created to read:

AB8-ASA1,8,6 227.10 (2m) No agency may implement or enforce any standard, requirement, or threshold as a term or condition of any license issued by the agency unless such implementation and enforcement is expressly required or permitted by statute or by a rule that has been promulgated in accordance with this subchapter. The governor, by executive order, may prescribe standards to ensure that rules are promulgated in compliance with this subchapter.

AB8-ASA1, s. 2 Section 2. 227.11 (2) (a) of the statutes is renumbered 227.11 (2) (a) (intro.) and amended to read:

AB8-ASA1,8,14 227.11 (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:

AB8-ASA1, s. 3 Section 3. 227.11 (2) (a) 1. to 3. of the statutes are created to read:

AB8-ASA1,8,20 227.11 (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 expressly conferred on the agency by the legislature.

AB8-ASA1,8,24 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 expressly conferred on the agency by the legislature.

AB8-ASA1,9,5 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.

AB8-ASA1, s. 4 Section 4. 227.135 (2) of the statutes is amended to read:

AB8-ASA1,9,25 227.135 (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.

AB8-ASA1, s. 5 Section 5. 227.135 (3) of the statutes is amended to read:

AB8-ASA1,10,6 227.135 (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.

AB8-ASA1, s. 6 Section 6. 227.135 (4) of the statutes is repealed and recreated to read:

AB8-ASA1,10,18 227.135 (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.

AB8-ASA1, s. 7 Section 7. 227.137 (title) of the statutes is amended to read:

AB8-ASA1,10,20 227.137 (title) Economic impact reports analyses of proposed rules.

AB8-ASA1, s. 8 Section 8. 227.137 (1) of the statutes is repealed.

AB8-ASA1, s. 9 Section 9. 227.137 (2) (intro.) of the statutes is renumbered 227.137 (2) and amended to read:

AB8-ASA1,11,14 227.137 (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.

AB8-ASA1, s. 10 Section 10. 227.137 (2) (a) of the statutes is repealed.

AB8-ASA1, s. 11 Section 11. 227.137 (2) (b) of the statutes is repealed.

AB8-ASA1, s. 12 Section 12. 227.137 (3) (intro.) of the statutes is amended to read:

AB8-ASA1,12,3 227.137 (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, 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 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 shall include all of the following:

AB8-ASA1, s. 13 Section 13. 227.137 (3) (a) of the statutes is amended to read:

AB8-ASA1,12,10 227.137 (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.

AB8-ASA1, s. 14 Section 14. 227.137 (3) (b) of the statutes is amended to read:

AB8-ASA1,12,16 227.137 (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, and affected individuals that may be affected by the proposed rule.

AB8-ASA1, s. 15 Section 15. 227.137 (3) (c) of the statutes is amended to read:

AB8-ASA1,12,21 227.137 (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.

AB8-ASA1, s. 16 Section 16. 227.137 (3) (d) of the statutes is created to read:

AB8-ASA1,12,24 227.137 (3) (d) An analysis of alternatives to the proposed rule, including the alternative of not promulgating the proposed rule.

AB8-ASA1, s. 17 Section 17. 227.137 (3) (e) of the statutes is created to read:

AB8-ASA1,13,4 227.137 (3) (e) A determination made in consultation with the businesses 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.

AB8-ASA1, s. 18 Section 18. 227.137 (4) of the statutes is amended to read:

AB8-ASA1,13,18 227.137 (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.

AB8-ASA1, s. 19 Section 19. 227.137 (5) of the statutes is repealed.

AB8-ASA1, s. 20 Section 20. 227.138 (title) and (1) of the statutes are repealed.

AB8-ASA1, s. 21 Section 21. 227.138 (2) (intro.) of the statutes is renumbered 227.137 (6) (intro.) and amended to read:

AB8-ASA1,14,6 227.137 (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 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:

AB8-ASA1, s. 22 Section 22. 227.138 (2) (a) of the statutes is renumbered 227.138 (6) (a) and amended to read:

AB8-ASA1,14,11 227.138 (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.

AB8-ASA1, s. 23 Section 23. 227.138 (2) (b) of the statutes is renumbered 227.137 (6) (b).

AB8-ASA1, s. 24 Section 24. 227.138 (2) (c) of the statutes is renumbered 227.137 (6) (c).

AB8-ASA1, s. 25 Section 25. 227.138 (2) (d) of the statutes is renumbered 227.137 (6) (d).

AB8-ASA1, s. 26 Section 26. 227.138 (3) of the statutes is renumbered 227.137 (7) and amended to read:

AB8-ASA1,14,23 227.137 (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.

AB8-ASA1, s. 27 Section 27. 227.138 (4) of the statutes is repealed.

AB8-ASA1, s. 28 Section 28. 227.14 (2) (a) 6. of the statutes is amended to read:

AB8-ASA1,15,4 227.14 (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).

AB8-ASA1, s. 29 Section 29. 227.15 (1) of the statutes is amended to read:

AB8-ASA1,15,16 227.15 (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) and the economic impact analysis required under s. 227.137 (2). 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.

AB8-ASA1, s. 30 Section 30. 227.15 (1m) (bm) of the statutes is created to read:

AB8-ASA1,15,18 227.15 (1m) (bm) The economic impact analysis required under s. 227.137 (2).

AB8-ASA1, s. 31 Section 31. 227.17 (3) (em) of the statutes is created to read:

AB8-ASA1,15,23 227.17 (3) (em) The economic impact analysis required under s. 227.137 (2) 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.

AB8-ASA1, s. 32 Section 32. 227.185 of the statutes is created to read:

AB8-ASA1,16,8 227.185 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) or filed with the legislative reference bureau under s. 227.20 for publication under s. 227.21 unless the governor has approved the proposed rule in writing.

AB8-ASA1, s. 33 Section 33. 227.19 (2) of the statutes is amended to read:

AB8-ASA1,16,25 227.19 (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.

AB8-ASA1, s. 34 Section 34. 227.19 (3) (intro.) of the statutes is amended to read:

AB8-ASA1,17,9 227.19 (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 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:

AB8-ASA1, s. 35 Section 35. 227.19 (4) (b) 1. (intro.) of the statutes is amended to read:

AB8-ASA1,17,16 227.19 (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:

AB8-ASA1, s. 36 Section 36. 227.19 (4) (b) 1m. of the statutes is created to read: