227.135(1)(b)
(b) A description of existing policies relevant to the rule and of new policies proposed to be included in the rule and an analysis of policy alternatives.
227.135(1)(d)
(d) Estimates of the amount of time that state employees will spend to develop the rule and of other resources necessary to develop the rule.
227.135(1)(e)
(e) A description of all of the entities that may be affected by the rule.
227.135(1)(f)
(f) A summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
227.135(2)
(2) 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 the proposed rule 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 the statement until at least 10 days after publication of the statement under
sub. (3). No state employee or official may perform any activity in connection with the drafting of a proposed rule except for an activity necessary to prepare the statement of the scope of the proposed rule until the governor and the individual or body with policy-making powers over the subject matter of the proposed rule approve the statement.
227.135(3)
(3) If the governor approves a statement of the scope of a proposed rule under
sub. (2), the agency shall send an electronic copy of the statement to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register. On the same day that the agency sends the statement to the legislative reference bureau, the agency shall send a copy of the statement to the secretary of administration. The agency shall include with any statement of scope sent to the legislative reference bureau the date of the governor's approval of the statement of scope. The legislative reference bureau shall assign a discrete identifying number to each statement of scope and shall include that number and the date of the governor's approval in the publication of the statement of scope in the register.
227.135(4)
(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.
227.135 Note
NOTE: In
Coyne v. Walker,
2016 WI 38, the Supreme Court held that provisions of
2011 Wisconsin Act 21 that give to the Governor, and in limited cases, the Secretary of Administration, the power to intervene in the process of drafting and promulgating administrative rules are unconstitutional as applied to the Superintendent of Public Instruction.
227.135 Annotation
Finding Administrative Intent in the Wisconsin Administrative Register. Sefarbi. Wis. Law. April 2003.
227.135 Annotation
Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.
227.137
227.137
Economic impact analyses of proposed rules. 227.137(2)(2) An agency shall prepare an economic impact analysis for a proposed rule before submitting the proposed rule to the legislative council staff under
s. 227.15.
227.137(3)
(3) An economic impact 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 analysis, the agency shall solicit information and advice from 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 analysis from other businesses, associations, local governmental units, and individuals and from other agencies. The economic impact analysis shall include all of the following:
227.137(3)(a)
(a) An analysis and quantification of the policy problem 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.
227.137(3)(b)
(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 or passed along to the businesses, local governmental units, and individuals that may be affected by the proposed rule.
227.137(3)(c)
(c) An analysis of the actual and quantifiable benefits of the proposed rule, including an assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.
227.137(3)(d)
(d) An analysis of alternatives to the proposed rule, including the alternative of not promulgating the proposed rule.
227.137(3)(e)
(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.
227.137(3)(f)
(f) Except as provided in this paragraph, if the economic impact analysis relates to a proposed rule of the department of safety and professional services under
s. 101.63 (1) establishing standards for the construction of a dwelling, as defined in
s. 101.61 (1), an analysis of whether the proposed rule would increase the cost of constructing or remodeling such a dwelling by more than $1,000. This paragraph applies notwithstanding that the purpose of the one- and 2-family dwelling code under
s. 101.60 includes promoting interstate uniformity in construction standards. This paragraph does not apply to a proposed rule whose promulgation has been authorized under
s. 227.19 (5) (fm).
227.137(3)(g)
(g) An analysis of the ways in which and the extent to which the proposed rule would place any limitations on the free use of private property, including a discussion of alternatives to the proposed rule that would minimize any such limitations.
227.137(4)
(4) On the same day that the agency submits the economic impact analysis to the legislative council staff under
s. 227.15 (1), the agency shall also submit that analysis to the department of administration, to the governor, and to the chief clerks of each house of the legislature, who shall distribute the analysis to the presiding officers of their respective houses, to the chairpersons of the appropriate standing committees of their respective houses, as designated by those presiding officers, and to the cochairpersons of the joint committee for review of administrative rules. If a proposed rule is modified after the economic impact analysis is submitted under this subsection so that the economic impact of the proposed rule is significantly changed, the agency shall prepare a revised economic impact analysis for the proposed rule as modified. A revised economic impact analysis shall be prepared and submitted in the same manner as an original economic impact analysis is prepared and submitted.
227.137(5)
(5) This section does not apply to emergency rules promulgated under
s. 227.24.
227.137(6)
(6) If an economic impact 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 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:
227.137(6)(a)
(a) That the economic impact analysis is supported by related documentation contained or referenced in the economic impact analysis.
227.137(6)(b)
(b) That the agency has statutory authority to promulgate the proposed rule.
227.137(6)(c)
(c) That the proposed rule, including any administrative requirements, is consistent with and not duplicative of other state rules or federal regulations.
227.137(6)(d)
(d) That the agency has adequately documented the factual data and analytical methodologies that the agency used in support of the proposed rule and the related findings that support the regulatory approach that the agency chose for the proposed rule.
227.137(7)
(7) Before issuing a report under
sub. (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.
227.137 Note
NOTE: In
Coyne v. Walker,
2016 WI 38, the Supreme Court held that provisions of
2011 Wisconsin Act 21 that give to the Governor, and in limited cases, the Secretary of Administration, the power to intervene in the process of drafting and promulgating administrative rules are unconstitutional as applied to the Superintendent of Public Instruction.
227.137 Annotation
Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.
227.14
227.14
Preparation of proposed rules. 227.14(1)
(1)
Form and style. In preparing a proposed rule, an agency shall adhere substantially to the form and style used by the legislative reference bureau in the preparation of bill drafts and the form and style specified in the manual prepared by the legislative council staff and the legislative reference bureau under
s. 227.15 (7). To the greatest extent possible, an agency shall prepare proposed rules in plain language which can be easily understood.
227.14(1m)
(1m) Exception; preparation of certain environmental rules based on federal regulations. 227.14(1m)(a)(a) Notwithstanding
sub. (1), an agency may use the format of federal regulations published in the code of federal regulations in preparing a proposed rule for publication or distribution and in preparing a proposed rule for filing if the agency determines that all or part of a state environmental regulatory program is to be administered according to standards, requirements or methods which are identical to standards, requirements or methods specified for all or part of a federal environmental regulatory program.
227.14(1m)(b)
(b) Notwithstanding
sub. (1), an agency may use the format of federal regulations published in the code of federal regulations in preparing a proposed rule for publication or distribution and in preparing a proposed rule for filing if the agency determines that all or part of a state environmental regulatory program is to be administered according to standards, requirements or methods which are similar to standards, requirements or methods specified for all or part of a federal environmental regulatory program.
227.14(1s)
(1s) Exception; preparation of certain rules based on federal food code. Notwithstanding
sub. (1), if the department of agriculture, trade and consumer protection or the department of health services prepares a proposed rule based on the model food code published by the federal food and drug administration, the proposed rule may be in the format of the model food code.
227.14(2)(a)(a) An agency shall prepare in plain language an analysis of each proposed rule, which shall be printed as a preface to the text of the proposed rule when it is published or distributed. The analysis shall include all of the following:
227.14(2)(a)1.
1. A reference to each statute that the proposed rule interprets, each statute that authorizes its promulgation, each related statute or related rule, and an explanation of the agency's authority to promulgate the proposed rule under those statutes.
227.14(2)(a)3.
3. A summary of and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule.
227.14(2)(a)4.
4. A comparison with similar rules in Illinois, Iowa, Michigan, and Minnesota.
227.14(2)(a)5.
5. A summary of the factual data and analytical methodologies that the agency used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule.
227.14(2)(a)6.
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 analysis under
s. 227.137 (3).
227.14(2)(a)6m.
6m. A copy of any comments and opinion prepared by the board of veterans affairs under
s. 45.03 (2m) for rules that are proposed by the department of veterans affairs.
227.14(2)(a)7.
7. The electronic mail address and telephone number of an agency contact person for the proposed rule.
227.14(2)(a)8.
8. The place where comments on the proposed rule should be submitted and the deadline for submitting those comments, if the deadline is known at the time the proposed rule is submitted to the legislative council staff under
s. 227.15 or, for a rule promulgated under
s. 186.118 (2) (a) or
(3) (b) 1., submitted as provided in
s. 186.118 (2) (b) or
(3) (b) 2.
227.14(2)(b)
(b) If the proposed rule is prepared in the format authorized under
sub. (1m), the analysis shall include a reference to the federal regulation upon which it is based. If the proposed rule is prepared in the format authorized under
sub. (1m) but differs from the federal regulation as permitted under
sub. (1m) (b), the analysis shall specify each portion of the proposed rule that differs from the federal regulation upon which it is based.
227.14(2g)
(2g) Review by the small business regulatory review board. On the same day that an agency submits to the legislative council staff under
s. 227.15 a proposed rule that may have an economic impact on small businesses, the agency shall submit the proposed rule, the analysis required under
sub. (2), and a description of its actions taken to comply with
s. 227.114 (2) and
(3) to the small business regulatory review board. The board may use cost-benefit analysis to determine the fiscal effect of the rule on small businesses and shall determine whether the proposed rule will have a significant economic impact on a substantial number of small businesses and whether the agency has complied with
subs. (2) and
(2m) and
s. 227.114 (2) and
(3). Except as provided in
subs. (1m) and
(1s), each proposed rule shall include provisions detailing how the rule will be enforced. If the board determines that the rule does not include an enforcement provision or that the agency failed to comply with
sub. (2) or
(2m) or
s. 227.114 (2) or
(3), the board shall notify the agency of that determination and ask the agency to comply with any of those requirements. If the board determines that the proposed rule will not have a significant economic impact on a substantial number of small businesses, the board shall submit a statement to that effect to the agency that sets forth the reason for the board's decision. If the board determines that the proposed rule will have a significant economic impact on a substantial number of small businesses, the board may submit to the agency suggested changes in the proposed rule to minimize the economic impact of the proposed rule, or may recommend the withdrawal of the proposed rule under
sub. (6). In addition, the board may submit other suggested changes in the proposed rule to the agency, including proposals to reduce the use of cross-references in the rule. The board shall send a report of any suggested changes and of any notice of failure to include enforcement provisions or to comply with
sub. (2) or
(2m) or
s. 227.114 (2) or
(3) to the legislative council staff. The notification to the agency may include a request that the agency do any of the following:
227.14(2g)(a)
(a) Verify that the proposed rule does not conflict with, overlap, or duplicate other rules or federal regulations.
227.14(2g)(b)
(b) Require the inclusion of fee information and fee schedules in the analysis under
sub. (2), including why fees are necessary and for what purpose the fees will be used.
227.14(2m)
(2m) Quality of agency data and reduction of cross references. Each agency shall, in cooperation with the department of administration, ensure the accuracy, integrity, objectivity, and consistency of the data that is used when preparing a proposed rule and when completing an analysis of the proposed rule under
sub. (2). Each agency shall reduce the amount of cross-references to the statutes in proposed and final rules. A person affected by a proposed rule may submit comments to the agency regarding the accuracy, integrity, or consistency of that data.
227.14(3)
(3) Reference to applicable forms. If a proposed rule requires a new or revised form, an agency shall include a reference to the form in a note to the proposed rule and shall attach to the proposed rule a copy of the form or a description of how a copy may be obtained. The legislative reference bureau shall insert the reference in the code as a note to the rule.
227.14(4)(a)(a) An agency shall prepare a fiscal estimate for each proposed rule before it is submitted to the legislative council staff under
s. 227.15.
227.14(4)(b)
(b) The fiscal estimate shall include the major assumptions used in its preparation and a reliable estimate of the fiscal impact of the proposed rule, including:
227.14(4)(b)1.
1. The anticipated effect on county, city, village, town, school district, technical college district and sewerage district fiscal liabilities and revenues.
227.14(4)(b)2.
2. A projection of the anticipated state fiscal effect during the current biennium and a projection of the net annualized fiscal impact on state funds.
227.14(4)(b)3.
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.
227.14(4)(c)
(c) If a proposed rule interpreting or implementing a statute has no independent fiscal effect, the fiscal estimate prepared under this subsection shall be based on the fiscal effect of the statute.
227.14(4)(d)
(d) If a proposed rule is revised so that its fiscal effect is significantly changed prior to its issuance, an agency shall prepare a revised fiscal estimate before promulgating the rule. The agency shall give notice of a revised fiscal estimate in the same manner that notice of the original estimate is given.
227.14(4m)
(4m) Notice of submittal to legislative council staff. On the same day that an agency submits a proposed rule to the legislative council staff under
s. 227.15, the agency shall prepare a written notice of the agency's submittal to the legislative council staff. The notice shall include a statement of the date on which the proposed rule has been submitted to the legislative council staff for review, of the subject matter of the proposed rule and of whether a public hearing on the proposed rule is required, and shall identify the organizational unit within the agency that is primarily responsible for the promulgation of the rule. The notice shall also include a statement containing the identifying number of the statement of scope for the proposed rule assigned under
s. 227.135 (3), the date of publication and issue number of the register in which the statement of scope is published, and the date of approval of the statement of scope by the individual or body with policy-making powers over the subject matter of the proposed rule under
s. 227.135 (2). The notice shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule. The agency shall send an electronic copy of the notice to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register. On the same day that the agency sends the notice to the legislative reference bureau, the agency shall send a copy of the notice to the secretary of administration.
227.14(5)
(5) Copies available to the public at no cost. An agency, upon request, shall make available to the public at no cost a copy of any proposed rule, including the analysis, fiscal estimate and any related form.
227.14(6)(a)(a) Notwithstanding
s. 227.01 (10), in this subsection, “proposed rule" means all of the agency's proposal to promulgate a rule.
227.14(6)(b)
(b) An agency may withdraw a proposed rule at any time prior to filing under
s. 227.20 by notifying the presiding officer of each house of the legislature and the legislative council staff of its intention not to promulgate the proposed rule.
227.14(6)(c)
(c) A proposed rule shall be considered withdrawn on December 31 of the 4th year after the year in which it is submitted to the legislative council staff under
s. 227.15 (1), unless it has been filed with the legislative reference bureau under
s. 227.20 (1) or withdrawn by the agency before that date. No action by a legislative committee or by either house of the legislature under
s. 227.19 delays the date of withdrawal of a proposed rule under this paragraph.
227.14(6)(d)
(d) If a proposed rule is withdrawn, the proposed rule may be promulgated only by commencing the rule-making procedure again with the preparation, under
s. 227.135, of a statement of the scope of the proposed rule that the agency plans to promulgate.
227.14 Annotation
The 2003 Jobs Creation Act: Changing Wisconsin's Regulatory Climate. Fassbender & Kent. Wis. Law. Sept. 2004.
227.15
227.15
Legislative council staff. 227.15(1)
(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),
(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.
227.15(1m)
(1m) Internet access to proposed rule. The legislative council staff shall create and maintain an Internet site that includes a copy of or link to each proposed rule received under
sub. (1) in a format that allows searching using keywords. Each agency shall provide the legislative council staff with the proposed rules and other information needed to comply with this subsection in the format required by the legislative council staff. The Internet site shall identify or provide a link to a site that identifies proposed rules affecting small businesses, as defined in
s. 227.114 (1). The Internet site shall also include or provide a link to all of the following:
227.15(1m)(a)
(a) The electronic mail address and telephone number of an agency contact person for each proposed rule.
227.15(1m)(d)
(d) The written report of the legislative council staff review of the proposed rule prepared under
sub. (2) and any agency comments regarding that report.
227.15(1m)(e)
(e) The time, date, and place of any public hearing specified in the notice in
s. 227.17 as soon as that notice is submitted to the legislative reference bureau under
s. 227.17 (1) (a).
227.15(1m)(f)
(f) The place where comments on the proposed rule should be submitted and the deadline for submitting those comments.
227.15(2)
(2) Role of legislative council staff. The legislative council staff shall, within 20 working days following receipt of a proposed rule, review the proposed rule in accordance with this subsection. With the consent of the director of the legislative council staff, the review period may be extended for an additional 20 working days. The legislative council staff shall act as a clearinghouse for rule drafting and cooperate with the agency and the legislative reference bureau to:
227.15(2)(a)
(a) Review the statutory authority under which the agency intends to promulgate the proposed rule.
227.15(2)(b)
(b) Ensure that the promulgation procedures required by this chapter are followed.
227.15(2)(c)
(c) Review proposed rules for form, style and placement in the code.
227.15(2)(d)
(d) Review proposed rules to avoid conflict with or duplication of existing rules.
227.15(2)(e)
(e) Review proposed rules for adequate references to related statutes, rules and forms.
