Chapter 227

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 department of administration, which shall make a determination as to whether the agency has the explicit authority to promulgate the rule as proposed in the statement of scope and shall report the statement of scope and its determination to the governor who, in his or her discretion, may approve or reject the statement of scope. 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 agency shall also present the statement to the individual or body with policy-making powers over the subject matter of the proposed rule for approval. 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) and, if a preliminary public hearing and comment period are held by the agency under s. 227.136, until the individual or body has received and reviewed any public comments and feedback received from the agency under s. 227.136 (5). 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. This subsection does not prohibit an agency from performing an activity necessary to prepare a petition and proposed rule for submission under s. 227.26 (4).

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 and to the chief clerks of each house of the legislature, who shall distribute the statement to the cochairpersons of the joint committee for review of administrative rules. 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(5) (5) A statement of scope shall expire on the date that is 30 months after the date on which it is published in the register. After a statement of scope expires, an agency may not submit a proposed rule based upon that statement of scope to the legislature for review under s. 227.19 (2), and any such rule that has not been submitted to the legislature for review before that date shall be considered withdrawn on that date as provided in s. 227.14 (6) (c) 1. a. For purposes of this subsection, a revised statement of scope prepared under sub. (4) shall expire on the date that is 30 months after the date on which the revised statement is published in the register.

227.135 History History: 1995 a. 106; 2003 a. 118, 145; 2005 a. 249; 2007 a. 20; 2011 a. 21; 2013 a. 20, 165; 2017 a. 39, 57, 108.

227.135 Annotation The requirement that agencies receive gubernatorial approval under sub. (2) prior to drafting a proposed rule, and again under s. 227.185 before submitting the rule to the legislature, is constitutional as applied to the state superintendent of public instruction and the Department of Public Instruction. Koschkee v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600, 17-2278.

227.135 Annotation Under sub. (4), there is a change to the scope of a proposed rule only when the agency changes a draft rule under consideration in a way that meaningfully or measurably departs from the topics described in the previously authorized scope statement. There is no need for a revised scope statement if all of the topics covered in both the initial and changed versions of the draft rule fit within the range of topics for potential rules described in the previously authorized scope statement. Applegate-Bader Farm, LLC v. DOR, 2020 WI App 7, 390 Wis. 2d 708, 940 N.W.2d 725, 18-1239.

227.135 Annotation Reversed on other grounds. 2021 WI 26, 396 Wis. 2d 69, 955 N.W.2d 793, 18-1239.

227.135 Annotation Practice Tips: Finding Administrative Intent in the Wisconsin Administrative Register. Sefarbi. Wis. Law. Apr. 2003.

227.135 Annotation Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.

227.136 227.136 Preliminary public hearing and comment period.

227.136(1) (1) Within 10 days after publication of a statement of the scope of a proposed rule under s. 227.135 (3), either cochairperson of the joint committee for the review of administrative rules may submit a written directive to the agency that prepared the statement for the agency to hold a preliminary public hearing and comment period on the statement of scope as provided in this section.

227.136(2) (2) If the agency is directed to hold a preliminary public hearing and comment period on a statement of scope as provided in sub. (1) or if the agency otherwise opts to do so on its own initiative, the agency shall submit to the legislative reference bureau, in a format approved by the legislative reference bureau, a notice of a preliminary public hearing and comment period to allow for public comment and feedback on the statement of scope. The agency may also take any other action it considers necessary to provide notice of the preliminary public hearing and comment period to other interested persons. The notice shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule and shall include all of the following:

227.136(2)(a) (a) A statement of the date, time, and place of the preliminary public hearing.

227.136(2)(b) (b) The place where comments on the statement of scope should be submitted and the deadline for submitting those comments.

227.136(3) (3) The agency shall hold the preliminary public hearing and comment period in accordance with the notice required under sub. (2), but may not hold the hearing sooner than the 3rd day after publication of the notice in the register.

227.136(4) (4) The agency shall conduct a hearing under this section in accordance with s. 227.18.

227.136(5) (5) The agency shall report all public comments and feedback on the statement of scope of the proposed rule that the agency receives at the preliminary public hearing and comment period to the individual or body with policy-making powers over the subject matter of the proposed rule.

227.136(6) (6) Failure of any person to receive notice of a preliminary public hearing as provided in this section is not grounds for invalidating any resulting rule if notice of the hearing was published in the register in accordance with s. 35.93 (2) (b) 3. bm.

227.136(7) (7) For the purpose of soliciting public comment, an agency may hold a hearing on the general subject matter of possible or anticipated rules before preparing a statement of scope for a proposed rule. A hearing held under this subsection does not relieve the agency from its obligation to comply with a directive under sub. (1) or the requirement to hold a hearing under s. 227.16.

227.136 History History: 2017 a. 57 ss. 5, 17.

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. The agency or person preparing the analysis 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 or person shall prepare the economic impact analysis in coordination with local governmental units that may be affected by the proposed rule. The agency or person may also 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. If the approach chosen by the agency to address that policy problem is different from those approaches, an economic impact analysis prepared by an agency shall include 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, specifically including all of the following:

227.137(3)(b)1. 1. An estimate of the total implementation and compliance costs that are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals as a result of the proposed rule, expressed as a single dollar figure. With respect to an independent economic impact analysis prepared under sub. (4m) or s. 227.19 (5) (b) 3., the person preparing the analysis shall provide a detailed explanation of any variance from the agency’s estimate under this subdivision.

227.137(3)(b)2. 2. A determination, for purposes of the requirement under s. 227.139, as to whether $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.

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(4m) (4m) 

227.137(4m)(a) (a) After an agency submits an economic impact analysis for a proposed rule to the legislature under sub. (4), but before the agency submits the proposed rule for approval under s. 227.185, either cochairperson of the joint committee for review of administrative rules may request an independent economic impact analysis to be prepared for the proposed rule.

227.137(4m)(am) (am)

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) (b)

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)1. 1. Include in the analysis the information that is required under sub. (3).

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 History History: 2003 a. 118; 2005 a. 249; 2011 a. 21 ss. 7 to 18, 21 to 26; 2011 a. 32; 2013 a. 166 s. 76; 2015 a. 391; 2017 a. 57.

227.137 Annotation In 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 Annotation Reversed on other grounds. 2021 WI 26, 396 Wis. 2d 69, 955 N.W.2d 793, 18-1239.

227.137 Annotation Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.

227.138 227.138 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 History History: 2017 a. 108.

227.139 227.139 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) (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(3) (3) This section does not apply to rules promulgated under s. 227.24.

227.139(4) (4) 

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)1. 1. The rule is necessary to comply with an explicit call for a state implementation plan by the federal environmental protection agency under 42 USC 7410 (a) (1), 42 USC 7411 (c) (1) or (d) (1), or 42 USC 7412 (l) (1).

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 History History: 2017 a. 57.

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.