AB655: Bill Text

AB655,71,17 (a) "Department" means the department of administration.

AB655,71,18 (b) "Economic impact report" means a report prepared under s. 227.137.

AB655,71,20 (c) "Guideline or policy" includes any agency comments or policies in response to federal regulations.

AB655,72,6 (2) If the department receives an economic impact report under s. 227.137 (4) regarding a proposed rule, the department shall review the proposed rule and issue a report. A municipality, an association that represents a farm, labor, business, or professional group, or 5 or more persons having an interest in a proposed rule may petition the department to review the proposed rule. If the department determines that the petitioner may be economically affected by the proposed rule, the department shall review the proposed rule and issue a report. The department shall notify the agency that a report will be prepared and that the agency shall not submit a proposed rule to the legislative council for review under s. 227.15 (1) until the agency receives a copy of the department's report. The report shall include all of the following findings:

AB655,72,9 (a) If an economic impact report was prepared as required under s. 227.137 (1), that the report and the analysis required under s. 227.137 (3) are supported by related documentation contained in the economic impact report.

AB655,72,11 (b) That the agency has clear statutory authority to promulgate the proposed rule.

AB655,72,13 (c) That the proposed rule, including any administrative requirements, is consistent with and not duplicative of other state rules or federal regulations.

AB655,72,15 (d) That the proposed rule is consistent with the governor's positions and priorities, including those related to economic development.

AB655,72,18 (e) That the agency used data, studies, and other sources of information in developing the proposed rule that is complete, accurate, and derived from accepted scientific methodologies.

AB655,73,3 (3) Before issuing a report under sub. (2), the department may return a proposed rule to the agency for further consideration and revision with a written explanation of why the proposed rule is 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 department secretary shall approve the proposed rule when the agency has adequately addressed the issues raised during the department's review of the rule. The department shall submit a statement to the governor indicating the department's approval of the proposed rule, the correspondence between the agency and the department related to the proposed rule, and a copy of its report regarding the proposed rule.

AB655,73,13 (4) If the department receives an economic impact report under s. 227.137 (4) regarding a proposed or existing guideline or policy, the department shall review the guideline or policy and issue a report. A municipality, an association that represents a farm, labor, business, or professional group, or 5 or more persons having an interest in a proposed or existing guideline or policy may petition the department to review the guideline or policy. If the department determines that the petitioner may be economically affected by the guideline or policy, the department shall review the guideline or policy and issue a report. The department shall notify the agency that a report will be prepared. The report shall include findings consistent with those under sub. (2) and include the following findings:

AB655,73,16 (a) If an economic impact report was prepared as required under s. 227.137 (4), that the report and the analysis required under s. 227.137 (3) are supported by related documentation contained in the economic impact report.

AB655,73,18 (b) That the guideline or policy is consistent with and does not exceed the agency's statutory authority.

AB655,73,20 (c) That the guideline or policy is consistent with the governor's positions and priorities, including those related to economic development.

AB655,73,22 (d) That the guideline or policy is of the type that is not required to be promulgated as a rule.

AB655,74,2 (5) Before issuing a report under sub. (4), the department may prohibit an agency from implementing a proposed guideline or policy until the department secretary determines that the proposed guideline or policy meets the criteria under sub. (4) (a) to (d).

AB655, s. 177 Section 177. 227.14 (2) (a) of the statutes is amended to read:

AB655,74,6 227.14 (2) (a) An agency shall prepare in plain language an analysis of each proposed rule, which shall be printed with the proposed rule when it is published or distributed. The analysis shall include a all of the following:

AB655,74,8 1. A reference to each statute that the proposed rule interprets, each statute that authorizes its promulgation, each related statute or related rule and a.

AB655,74,9 2. A brief summary of the proposed rule.

AB655, s. 178 Section 178. 227.14 (2) (a) 3. of the statutes is created to read:

AB655,74,12 227.14 (2) (a) 3. A summary of the relevant legal interpretations and policy considerations underlying the proposed rule.

AB655, s. 179 Section 179. 227.14 (2) (a) 4. of the statutes is created to read:

AB655,74,15 227.14 (2) (a) 4. A summary of existing and anticipated federal regulatory programs intended to address similar matters.

AB655, s. 180 Section 180. 227.14 (2) (a) 5. of the statutes is created to read:

AB655,74,22 227.14 (2) (a) 5. A summary of the factual data, studies, and other sources of information on which the proposed rule is based, the methodology used to obtain and analyze the data, studies, and other sources of information, how the data, studies, and other sources of information support the regulatory approach chosen for the rule, and how the data, studies, and other sources of information support any required agency's findings.

AB655, s. 181 Section 181. 227.14 (2) (a) 6. of the statutes is created to read:

AB655,75,3 227.14 (2) (a) 6. Any analysis and supporting documentation used when the agency considered the rule's effect on small businesses under s. 227.114 or used when preparing an economic impact report under s. 227.137 (3).

AB655, s. 182 Section 182. 227.14 (4) (b) 3. of the statutes is created to read:

AB655,75,7 227.14 (4) (b) 3. For rules that the agency determines may have a significant fiscal effect on the private sector, the anticipated costs that will be incurred by the private sector in complying with the rule.

AB655, s. 183 Section 183. 227.185 of the statutes is created to read:

AB655,75,16 227.185 Approval by governor. After a proposed rule is in final draft form and approved by the department of administration under s. 227.138 (3), the agency shall submit the rule to the governor. The governor may approve, modify, 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 office of secretary of state or revisor unless the governor has approved the proposed rule in writing. This section does not apply to emergency rules promulgated under s. 227.24.

AB655, s. 184 Section 184. 227.19 (2) of the statutes is amended to read:

AB655,76,5 227.19 (2) Notification of legislature. An agency shall submit a notice to the presiding officer of each house of the legislature when a proposed rule is in final draft form and approved by the governor. 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 shall be considered received on the first day of the next regular session of the legislature. Each presiding officer shall, within 7 working days following the day on which the notice and report are received, refer them to one committee, which may be either a standing committee or a joint legislative committee created by law, except the joint committee for review of administrative rules. The agency shall submit to the revisor for publication in the register a statement that a proposed rule has been submitted to the presiding officer of each house of the legislature. Each presiding officer shall enter a similar statement in the journal of his or her house.

AB655, s. 185 Section 185. 227.19 (3) (intro.) of the statutes is amended to read:

AB655,76,13 227.19 (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 (4), a copy of any economic impact report prepared by the agency under s. 227.137, a copy of the report prepared by the department of administration under s. 227.138, a copy of the written approval of the governor under s. 227.185, a copy of any recommendations of the legislative council staff, and an analysis. The analysis shall include:

AB655, s. 186 Section 186. 227.19 (3) (a) of the statutes is amended to read:

AB655,76,17 227.19 (3) (a) A detailed statement explaining the need for basis and purpose of the proposed rule, including how the proposed rule advances relevant statutory goals or purposes.

AB655, s. 187 Section 187. 227.19 (3) (am) of the statutes is created to read:

AB655,76,21 227.19 (3) (am) An analysis of policy alternatives to the proposed rule, including reliance on federal regulatory programs, and an explanation for the rejection of those alternatives.

AB655, s. 188 Section 188. 227.19 (3) (b) of the statutes is amended to read:

AB655,77,2 227.19 (3) (b) An A summary of public comments to the proposed rule and the agency's response to those comments, and an explanation of any modification made in the proposed rule as a result of public comments or testimony received at a public hearing.

AB655, s. 189 Section 189. 227.19 (3) (cm) of the statutes is created to read:

AB655,77,5 227.19 (3) (cm) Any changes to the analysis prepared under s. 227.14 (2) or the fiscal estimate prepared under s. 227.14 (4).

AB655, s. 190 Section 190. 227.40 (4m) of the statutes is created to read:

AB655,77,13 227.40 (4m) (a) In any proceeding under this section for judicial review of a rule, the court shall conduct the review without a jury. The review shall be confined to a substantial inquiry of the agency record, as necessarily and appropriately supplemented by evidence presented to the court. The agency record includes the economic impact report and documentation required under s. 227.137 (3), the analysis and documentation required under ss. 227.14 (2) and 227.19 (3), and public comments on the rule.

AB655,77,16 (b) The court shall treat separately disputed issues of agency procedure, interpretations of law, and determinations of fact or policy within the agency's exercise of delegated discretion.

AB655,77,24 (c) When reviewing whether a rule is invalid as promulgated for failure to comply with statutory rule-making procedures under this chapter, the court shall determine the adequacy of the factual basis to support the rule and the related reasoning employed by the agency to reach its conclusions. When determining the adequacy of the factual basis to support the rule, the court shall consider relevant comments on and alternatives to the rule's approach offered by affected parties during the rule-making process. Based on this review, the court shall find the rule invalid if the agency's decision-making process was arbitrary and capricious.

AB655,78,4 (d) The court shall find a rule invalid if it determines that the adequacy of the rule-making process or that the validity of the regulatory approach was impaired by a material error in agency procedure or a failure of the agency to follow prescribed procedure.

AB655,78,10 (e) When an agency's statutory authority to promulgate a rule is predicated on the rule being comparable to relevant federal programs or standards, including requirements that the rule be similar to, consistent with, or no more restrictive than federal programs or standards, the court shall conduct a de novo review of the agency record to determine if the agency determination that the rule was comparable to the federal program or standards was supported by substantial evidence.

AB655,78,15 (f) When an agency's statutory authority to promulgate a rule exceeding relevant federal programs or standards is predicated on the agency making a finding of need, including a need to protect human health or the environment, the court shall review the agency's record to determine if the agency's findings were supported by substantial evidence.

AB655,78,18 (g) If a court finds that the agency's analysis and determinations under s. 227.137 (3) are arbitrary and capricious, the court shall find the rule invalid as without compliance with statutory rule-making procedures set forth in this chapter.

AB655, s. 191 Section 191. 227.43 (1g) of the statutes is created to read:

AB655,78,21 227.43 (1g) The administrator of the division of hearings and appeals shall randomly assign hearing examiners to preside over any hearing under this section.

AB655, s. 192 Section 192. 227.44 (2) (d) of the statutes is created to read:

AB655,78,23 227.44 (2) (d) The name and title of the person who will conduct the hearing.

AB655, s. 193 Section 193. 227.445 of the statutes is created to read:

AB655,79,4 227.445 Substitution of hearing examiner. (1) A person requesting a hearing before a hearing examiner may file a written request for a substitution of a new hearing examiner for the hearing examiner assigned to the matter. The written request shall be filed not later than 10 days after receipt of the notice under s. 227.44.

AB655,79,5 (2) No person may file more than one such written request in any one hearing.

AB655,79,14 (3) Upon receipt of the written request, the original hearing examiner shall have no further jurisdiction in the matter except to determine if the request was made timely and in proper form. If the hearing examiner fails to make a determination as to allowing the substitution within 7 days, the hearing examiner shall refer the matter to the administrator of the division of hearings and appeals for the determination and reassignment of the hearing as necessary. If the written request is determined to be proper, the matter shall be transferred to another hearing examiner. Upon transfer, the hearing examiner shall transmit to the new hearing examiner all the papers in the matter.

AB655, s. 194 Section 194. 227.45 (7) (intro.) of the statutes is renumbered 227.45 (7) and amended to read:

AB655,79,25 227.45 (7) In any class 2 proceeding, each party shall have the right, prior to the date set for hearing, to take and preserve evidence as provided in ch. 804. Upon motion by a party or by the person from whom discovery is sought in any class 2 proceeding, and for good cause shown, the hearing examiner may make any order in accordance with s. 804.01 which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. In any class 1 or class 3 proceeding, an agency may by rule permit the taking and preservation of evidence, but in every such proceeding the taking and preservation of evidence shall be permitted with respect to a witness:

AB655, s. 195 Section 195. 227.45 (7) (a) to (d) of the statutes are repealed.

AB655, s. 196 Section 196. 227.46 (1) (intro.) of the statutes is amended to read:

AB655,80,9 227.46 (1) (intro.) Except as provided under s. 227.43 (1), an agency may designate an official of the agency or an employee on its staff or borrowed from another agency under s. 20.901 or 230.047 as a hearing examiner to preside over any contested case. In hearings under s. 19.52, a reserve judge shall be appointed. A hearing examiner does not have authority to address or make decisions regarding possible constitutional issues. Subject to rules of the agency, examiners presiding at hearings may:

AB655, s. 197 Section 197. 227.46 (1) (h) of the statutes is amended to read:

AB655,80,12 227.46 (1) (h) Make or recommend findings of fact, conclusions of law, and decisions to the extent permitted by law.

AB655, s. 198 Section 198. 227.46 (2) of the statutes is repealed.

AB655, s. 199 Section 199. 227.46 (2m) of the statutes is repealed.

AB655, s. 200 Section 200. 227.46 (3) of the statutes is repealed.

AB655, s. 201 Section 201. 227.46 (4) of the statutes is repealed.

AB655, s. 202 Section 202. 227.46 (6) of the statutes is amended to read:

AB655,80,24 227.46 (6) The functions of persons presiding at a hearing or participating in proposed or final decisions shall be performed in an impartial manner. A hearing examiner or agency official may at any time disqualify himself or herself. In class 2 and 3 proceedings, on the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a hearing examiner or official, the agency or hearing examiner shall determine the matter as part of the record and decision in the case.

AB655, s. 203 Section 203. 227.47 (1) of the statutes is amended to read:

AB655,81,9 227.47 (1) Except as provided in sub. (2), every proposed or final decision of an agency or hearing examiner following a hearing and every final decision of an agency shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact without recital of evidence. Every proposed or final decision shall include a list of the names and addresses of all persons who appeared before the agency in the proceeding who are considered parties for purposes of review under s. 227.53. The agency shall by rule establish a procedure for determination of parties.

AB655, s. 204 Section 204. 227.483 of the statutes is created to read:

AB655,81,15 227.483 Costs upon frivolous claims. (1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party his or her costs, as determined under s. 814.04, and reasonable attorney fees.

AB655,81,19 (2) If the costs and fees awarded under sub. (1) are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.

AB655,81,21 (3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following:

AB655,81,23 (a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

AB655,82,2 (b) That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

AB655, s. 205 Section 205. 227.485 (5) of the statutes is amended to read:

AB655,82,16 227.485 (5) If the hearing examiner awards costs under sub. (3), he or she shall determine the costs under this subsection, except as modified under sub. (4). The decision on the merits of the case shall be placed in a proposed decision and submitted under ss. 227.47 and 227.48. The prevailing party shall submit, within 30 days after service of the proposed decision, to the hearing examiner and to the state agency which is the losing party an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The state agency which is the losing party has 15 working days from the date of receipt of the application to respond in writing to the hearing examiner. The hearing examiner shall determine the amount of costs using the criteria specified in s. 814.245 (5) and include an order for payment of costs in the final decision.

AB655, s. 206 Section 206. 227.53 (1) (a) 3. of the statutes is amended to read:

AB655,83,6 227.53 (1) (a) 3. If the petitioner is a resident, the proceedings shall be held in the circuit court for the county where the petitioner resides, except that if the petitioner is an agency, the proceedings shall be in the circuit court for the county where the respondent resides and except as provided in ss. 73.0301 (2) (b) 2., 77.59 (6) (b), 182.70 (6), and 182.71 (5) (g). The proceedings shall be in the circuit court for Dane County if If the petitioner is a nonresident , the proceedings shall be held in the county where the property affected by the decision is located or, if no property is affected, in the county where the dispute arose. If all parties stipulate and the court to which the parties desire to transfer the proceedings agrees, the proceedings may be held in the county designated by the parties. If 2 or more petitions for review of the same decision are filed in different counties, the circuit judge for the county in which a petition for review of the decision was first filed shall determine the venue for judicial review of the decision, and shall order transfer or consolidation where appropriate.

AB655, s. 207 Section 207. 227.57 (11) of the statutes is created to read:

AB655,83,10 227.57 (11) If the decision of the hearing examiner is inconsistent with the position taken at the hearing by the agency, the court shall give no deference to the examiner's decision when conducting its review.

AB655, s. 208 Section 208. 236.16 (3) (d) (intro.) of the statutes is amended to read:

AB655,83,23 236.16 (3) (d) (intro.) All of the owners of all of the land adjacent to a public access established under par. (a) to an inland lake, as defined in s. 30.92 (1) (bk), may petition the city, village, town or county that owns the public access to construct shoreline erosion control measures. Subject to par. (e), the city, village, town or county shall construct the requested shoreline erosion control measures or request the department of natural resources to determine the need for shoreline erosion control measures. Upon receipt of a request under this paragraph from a city, village, town or county, the department of natural resources shall follow the notice and hearing procedures in s. 30.02 (3) and (4) 30.208 (3) to (5). Subject to par. (e), the city, village, town or county shall construct shoreline erosion control measures as required by the department of natural resources if the department of natural resources determines all of the following: