227.137(4m)(am)1.1. A request by the senate cochairperson of the joint committee for review of administrative rules for an independent economic impact analysis under par. (a) requires approval by the committee on senate organization. 227.137(4m)(am)2.2. A request by the assembly cochairperson of the joint committee for review of administrative rules for an independent economic impact analysis under par. (a) requires approval by the committee on assembly organization. 227.137(4m)(b)1.1. If a cochairperson of the joint committee for review of administrative rules requests an independent economic impact analysis under par. (a), and the request is approved under par. (am), the cochairperson shall notify the agency proposing the proposed rule and shall contract with a person that is not an agency to prepare the independent economic impact analysis. 227.137(4m)(b)2.2. Costs of completing an independent economic impact analysis shall be paid as follows: 227.137(4m)(b)2.a.a. If the estimate in the independent economic impact analysis of total implementation and compliance costs under sub. (3) (b) 1. varies from the agency’s estimate by 15 percent or more or varies from the agency’s determination that there will be no implementation or compliance costs, the cochairperson shall assess the agency that is proposing the proposed rule for the costs of completing the independent economic impact analysis. 227.137(4m)(b)2.b.b. If the estimate in the independent economic impact analysis of total implementation and compliance costs under sub. (3) (b) 1. does not vary from the agency’s estimate by 15 percent or more or is in accord with the agency’s determination that there will be no implementation and compliance costs, the costs of completing the independent economic impact analysis shall be paid from the appropriation account that corresponds to his or her house of the legislature under s. 20.765 (1) (a) or (b). 227.137(4m)(b)2.c.c. Notwithstanding subd. 2. a. and b., if the maximum potential obligation under the contract for completing the independent economic impact analysis exceeds $50,000, the cochairperson of the joint committee for review of administrative rules who is requesting the independent economic impact analysis shall submit the proposed contract to the joint committee on finance for the purpose of determining the funding source for the costs of completing the independent economic impact analysis, and the costs of completing the independent economic impact analysis shall be paid as provided by the joint committee on finance. If the joint committee on finance does not act to determine the funding source within 90 days, the costs of completing the independent economic impact analysis shall be paid as provided in subd. 2. a. and b. 227.137(4m)(c)(c) A person preparing an independent economic impact analysis under par. (b) shall do all of the following: 227.137(4m)(c)2.2. Upon completion of the analysis, submit the analysis to the agency, 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. 227.137(4m)(c)3.3. Complete the independent economic impact analysis within 60 days after contracting to prepare the analysis. 227.137(4m)(d)(d) When an independent economic impact analysis is requested under par. (a), the agency may not submit the proposed rule for approval under s. 227.185 until the agency receives the completed independent economic impact analysis. 227.137(5)(5) This section does not apply to emergency rules promulgated under s. 227.24. 227.137 AnnotationIn this case, the plaintiff failed to establish undisputed facts from the record that would allow the court to assess to any degree of specificity whether the change in economic effects were significant due to the draft rule change so as to warrant the preparation of a new economic impact statement under sub. (4). Applegate-Bader Farm, LLC v. DOR, 2020 WI App 7, 390 Wis. 2d 708, 940 N.W.2d 725, 18-1239. 227.137 AnnotationChanging the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.
227.138227.138 Retrospective economic impact analyses for rules. 227.138(1)(1) The joint committee for review of administrative rules may direct an agency to prepare a retrospective economic impact analysis for any of an agency’s rules that are published in the code. The committee may identify one or more specific chapters, sections, or other subunits in the code that are administered by the agency as the rules that are to be the subject of the analysis and may specify a deadline for the preparation of the analysis. A retrospective economic impact analysis shall contain information on the economic effect of the rules 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 have been affected by the rules. The agency shall prepare the retrospective economic impact analysis in coordination with local governmental units that have been affected by the rules. The agency may request information that is reasonably necessary for the preparation of a retrospective economic impact analysis from other businesses, associations, local governmental units, and individuals and from other agencies. The retrospective economic impact analysis shall include all of the following: 227.138(1)(a)(a) An analysis and quantification of the policy problem that the rules were intended to address, including comparisons with the approaches used by the federal government and by Illinois, Iowa, Michigan, and Minnesota to address that policy problem. 227.138(1)(b)(b) An analysis and detailed quantification of the economic impact of the rules, including the implementation and compliance costs that have been incurred by or passed along to the businesses, local governmental units, and individuals that have been affected by the rules. 227.138(1)(c)(c) An analysis of the actual and quantifiable benefits of the rules, including an assessment of how effective the rules have been in addressing the policy problem that the rules were intended to address. 227.138(1)(d)(d) An analysis of alternatives to the rules, including the alternative of repealing the rules. 227.138(1)(e)(e) A determination made in consultation with the businesses, local governmental units, and individuals that have been affected by the rules as to whether the rules have adversely affected in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state. 227.138(1)(f)(f) An analysis of the ways in which and the extent to which the rules have placed limitations on the free use of private property, including a discussion of alternatives to the rules that would minimize any such limitations. 227.138(1)(g)(g) A comparison of the actual economic effect of the rules being analyzed to any economic impact analysis that analyzed the expected economic effect of those rules when they were proposed. 227.138(1)(h)(h) Any other information requested by the committee related to the economic impact of the rules. 227.138(2)(2) An agency that prepares a retrospective economic impact analysis under sub. (1) shall 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. The agency shall also send an electronic copy of the analysis to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register. 227.138 HistoryHistory: 2017 a. 108. 227.139227.139 Passage of bill required for certain rules. 227.139(1)(1) If an economic impact analysis prepared under s. 227.137 (2), a revised economic impact analysis prepared under s. 227.137 (4), or an independent economic impact analysis prepared under s. 227.137 (4m) or 227.19 (5) (b) 3. indicates that $10,000,000 or more in implementation and compliance costs are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals over any 2-year period as a result of the proposed rule, the agency proposing the rule shall stop work on the proposed rule and may not continue promulgating the proposed rule notwithstanding any provision authorizing or requiring the agency to promulgate the proposed rule, except as authorized under sub. (2). 227.139(2)(a)(a) Any member of the legislature may introduce a bill authorizing an agency to promulgate a rule that the agency is prohibited from promulgating under sub. (1). The agency may resume the rule-making process as provided in this subchapter upon enactment of a bill introduced under this paragraph. 227.139(2)(b)(b) If an agency is prohibited from promulgating a rule under sub. (1), the agency may modify the proposed rule, if the modification is germane to the subject matter of the proposed rule, to address the implementation and compliance costs of the proposed rule. If the agency modifies a proposed rule under this paragraph, the agency shall prepare a revised economic impact analysis under s. 227.137 (4). Following the modification, the agency may continue with the rule-making process as provided in this subchapter if the revised economic impact analysis prepared by the agency indicates, and any independent economic impact analysis prepared under s. 227.137 (4m) or 227.19 (5) (b) 3. subsequent to the agency’s modification also indicates, that $10,000,000 or more in implementation and compliance costs are not reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals over any 2-year period as a result of the proposed rule. 227.139(4)(a)(a) This section does not apply to a proposed rule of the department of natural resources relating to air quality if all of the following apply: 227.139(4)(a)2.2. Any standard, requirement, or limitation proposed in the rule is consistent with and no more stringent in substance or form than what is required under the federal clean air act, 42 USC 7401 to 7671q, and regulations issued by the federal environmental protection agency under that act. 227.139(4)(a)3.3. The rule proposes to regulate only those emissions or substances explicitly required to be regulated under a state implementation plan described in subd. 1. 227.139(4)(b)(b) If the department of natural resources believes that par. (a) applies to a proposed rule, the department shall include a statement to that effect in any economic impact analysis prepared under s. 227.137 for the proposed rule. 227.139 HistoryHistory: 2017 a. 57. 227.14227.14 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)3m.3m. A summary of any public comments and feedback on the statement of scope of the proposed rule that the agency received at any preliminary public hearing and comment period held under s. 227.136 and a description of how and to what extent the agency took those comments and that feedback into account in drafting 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 under s. 227.16, 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)1.1. A proposed rule shall be considered withdrawn on whichever of the following dates occurs first, unless it is withdrawn sooner by the agency under par. (b): 227.14(6)(c)1.a.a. If the proposed rule is not submitted to the legislature for review under s. 227.19 (2) before the statement of the scope of the proposed rule expires as provided in s. 227.135 (5), on the date that statement of scope expires. 227.14(6)(c)1.b.b. 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) before that date. 227.14(6)(c)2.2. 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 AnnotationThe 2003 Jobs Creation Act: Changing Wisconsin’s Regulatory Climate. Fassbender & Kent. Wis. Law. Sept. 2004.
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Ch. 227, Administrative Procedure and Review
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