At a public hearing this week, Legislative Council briefed the Joint Committee for Review of Administrative Rules (JCRAR) on relevant rulemaking changes in 2017 Act 369, which was enacted as part of the 2018 Extraordinary Session.
Relevant to JCRAR, Legislative Council explained that Act 369 implemented several changes related to guidance documents, which agencies often use to provide further information and interpretation on rules or statutes. Act 369 clarifies that guidance documents do not have the force of law and provides transparency requirements, including that agencies must submit guidance documents to the Legislative Reference Bureau, allow public comment, and post guidance documents on their websites.
Legislative Council also explained that the new law allows JCRAR to suspend rules multiple times. Previously, JCRAR could suspend a rule once. If no legislation was enacted to suspend the rule permanently, the agency could promulgate the rule. Under Act 369, JCRAR can vote to suspend the rule again in the next session if no legislation was previously enacted for a permanent suspension.
Also of note to JCRAR, agencies must now notify JCRAR when they appoint members to advisory committees, which are panels of experts agencies engaged in rulemaking may consult. Act 369 also clarifies that compliance with federal law and settlement agreements do not inherently grant rulemaking authority to an agency. Furthermore, the Act ends Wisconsin courts’ practice of deference to agency interpretations of law, as decided in the recent Supreme Court decision Tetra Tech v. Department of Revenue.
Democrats on the committee expressed concerns about whether Act 369 – specifically the multiple suspensions provision – gives the legislature too much power in relation to agencies. However, JCRAR co-chair Rep. Joan Ballweg (R-Markesan) argued that the new law properly restores power to the legislature as a check on agency actions.