LRB-2582/1
MED:ahe
2019 - 2020 LEGISLATURE
May 8, 2019 - Introduced by Senators Smith,
Wirch and Hansen, cosponsored by
Representatives Spreitzer, Anderson, Brostoff, Kolste, Sargent, Sinicki,
Stubbs, Subeck, C. Taylor and Vruwink. Referred to Committee on
Government Operations, Technology and Consumer Protection.
SB204,1,9
1An Act to renumber and amend 227.19 (2);
to amend 227.135 (2), 227.135 (3),
2227.137 (2), 227.137 (3) (intro.), 227.137 (4), 227.14 (2) (a) 6., 227.14 (4m),
3227.15 (1), 227.15 (1m) (bm), 227.185, 227.19 (3) (intro.), 227.19 (4) (b) 1m.,
4227.19 (5) (b) 1m., 227.24 (1) (e) 1d. and 227.24 (1) (e) 1g.; and
to create 227.135
5(2m), 227.135 (6), 227.137 (2m), 227.137 (3m), 227.137 (4r) and 227.19 (2) (b)
62. of the statutes;
relating to: the procedure for promulgating a proposed rule
7that is considered at the joint annual spring fish and wildlife rule hearing of the
8Department of Natural Resources and county meeting of the Wisconsin
9Conservation Congress.
Analysis by the Legislative Reference Bureau
This bill makes various changes to the rule-making process with respect to
proposed administrative rules considered at the joint annual spring fish and wildlife
rule hearing of the Department of Natural Resources and county meeting of the
Wisconsin Conservation Congress (spring DNR-WCC meeting).
Gubernatorial approval and statements of scope for proposed rules
Current law requires a statement of the scope of a proposed rule to be presented
to the Department of Administration and be approved by the governor and the
individual or body that has policy-making powers for a state agency before a state
employee or official may perform any activity in connection with the drafting of the
proposed rule. Under this bill, for rules that are considered at the spring DNR-WCC
meeting, only the Natural Resources Board is required to approve a statement of
scope before those activities may be performed.
Under current law, a state agency must prepare and obtain approval of a
revised statement of scope if, after a statement of scope is approved, the agency
changes the scope of the proposed rule in any meaningful or measurable way. Under
the bill, this requirement does not apply to rules that are considered at the spring
DNR-WCC meeting.
Under current law, a state agency must prepare and obtain approval of a
statement of scope for a proposed emergency rule in the same manner as a statement
of scope is prepared and approved for a nonemergency rule. Under the bill, a
statement of scope is not required for emergency rules considered at the spring
DNR-WCC meeting.
Current law requires a state agency to submit a proposed rule in final draft form
to the governor for approval before the rule may be submitted to the legislature for
review and to submit a proposed emergency rule in final draft form to the governor
for approval before the emergency rule may be filed with the Legislative Reference
Bureau for publication. The bill eliminates these requirements for gubernatorial
approval for rules that are considered at the spring DNR-WCC meeting.
Finally, the bill permits automatic approval of a statement of scope for rules
that are considered at the spring DNR-WCC meeting if the Natural Resources Board
does not disapprove the statement of scope within 30 days after it is presented to the
board, or by the eleventh day after its publication in the Wisconsin Administrative
Register, whichever is later.
Economic impact analyses for proposed rules
When report must be prepared. Current law requires each state agency to
prepare an economic impact analysis for all permanent rules proposed by the agency.
In addition, current law requires a state agency to prepare a revised economic impact
analysis if a proposed rule is modified after the original economic impact analysis is
submitted so as to significantly change the economic impact of the proposed rule.
Under this bill, for rules that are considered at the spring DNR-WCC meeting,
an economic impact analysis is required only if the secretary of administration
directs the analysis to be prepared on the petition of a municipality; an association
that represents a farm, labor, business, or professional group; or five or more persons
who would be affected by the proposed rule. The bill requires the secretary to direct
the preparation of such an analysis if 1) the proposed rule would cost affected persons
$20,000,000 or more during each of the first five years after the rule's
implementation to comply with the rule; or 2) the rule would adversely affect in a
material way the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or state, local, or tribal governments or
communities.
Content of analysis. Current law requires certain specific information to be
included in an economic impact analysis.
This bill eliminates the requirements that this information be included in an
economic impact analysis for rules that are considered at the spring DNR-WCC
meeting. Under this bill, an economic impact analysis that is required for rules that
are considered at the spring DNR-WCC meeting must instead contain information
on the effect of the proposed rule on specific businesses, business sectors, and the
state's economy and must include all of the following: 1) an analysis and
quantification of the problem, including any risks to public health or the
environment, that the rule is intending to address; 2) an analysis and quantification
of the economic impact of the rule, including costs reasonably expected to be incurred
by the state, businesses, governmental units, and affected individuals; and 3) an
analysis of benefits of the rule, including how the rule reduces the risks and
addresses the problems that the rule is intended to address.
Independent economic impact analyses. Current law allows for an
independent economic impact analysis to be requested and prepared for a proposed
rule under certain circumstances. An independent economic impact analysis must
be prepared by a person other than an agency and must contain much of the same
information required for an economic impact analysis prepared by an agency under
current law.
Under the bill, an independent economic impact analysis may not be requested
for a rule considered at the spring DNR-WCC meeting.
Bill required for certain rules. Under current law, subject to certain
exceptions, if an economic impact analysis or an independent economic impact
analysis prepared for a proposed rule 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
two-year period as a result of the proposed rule, the agency proposing the rule must
stop work on the proposed rule and may not continue promulgating the proposed rule
unless a) the agency modifies the proposed rule to address its implementation and
compliance costs; or b) a bill is enacted authorizing the agency to promulgate the
rule.
Under the bill, these provisions do not apply with respect to a rule considered
at the spring DNR-WCC meeting.
Legislative review of proposed rules
Under current law, proposed rules in final form must be submitted to the
legislature for review by one standing committee in each house and the Joint
Committee for Review of Administrative Rules (JCRAR), which may each take
certain actions on the proposed rule. Current law provides that a proposed rule
received in the legislature after the last day of the legislature's final
general-business floorperiod is instead considered received on the first day of the
next regular session of the legislature, unless the presiding officers of both houses
direct referral before that day. This bill provides that, with respect to a proposed rule
considered at the spring DNR-WCC meeting, the proposed rule is only considered
received on the first day of the next regular session of the legislature if it is received
on or after September 1 of an even-numbered year.
Also under current law, each committee has 30 days after the proposed rule has
been referred to the committee to review the proposed rule, subject to limited
extensions. However, an exception provides that if a proposed rule received after the
last day of the legislature's final general-business floorperiod is referred for
committee review before the first day of the next regular session of the legislature,
the committee has until the day the next legislature convenes to review the proposed
rule. A similar exception applies to proposed rules when they are referred to JCRAR.
The bill provides that these exceptions do not apply to proposed rules considered at
the spring DNR-WCC meeting and therefore the review periods for those
committees are always 30 days, subject to other limited extensions.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB204,1
1Section 1
. 227.135 (2) of the statutes is amended to read:
SB204,5,82
227.135
(2) An Except as provided in sub. (2m), an agency that has prepared
3a statement of the scope of the proposed rule shall present the statement to the
4department of administration, which shall make a determination as to whether the
5agency has the explicit authority to promulgate the rule as proposed in the statement
6of scope and shall report the statement of scope and its determination to the governor
7who, in his or her discretion, may approve or reject the statement of scope. The
8agency may not send the statement to the legislative reference bureau for
9publication under sub. (3) until the governor issues a written notice of approval of
10the statement. The agency shall also present the statement to the individual or body
11with policy-making powers over the subject matter of the proposed rule for approval.
12The individual or body with policy-making powers may not approve the statement
13until at least 10 days after publication of the statement under sub. (3) and, if a
14preliminary public hearing and comment period are held by the agency under s.
15227.136, until the individual or body has received and reviewed any public comments
1and feedback received from the agency under s. 227.136 (5). No state employee or
2official may perform any activity in connection with the drafting of a proposed rule
3to which this subsection applies, except for an activity necessary to prepare the
4statement of the scope of the proposed rule until the governor and the individual or
5body with policy-making powers over the subject matter of the proposed rule
6approve the statement. This subsection does not prohibit an agency from performing
7an activity necessary to prepare a petition and proposed rule for submission under
8s. 227.26 (4).
SB204,2
9Section 2
. 227.135 (2m) of the statutes is created to read:
SB204,6,210
227.135
(2m) If the department of natural resources prepares a statement of
11the scope of a proposed rule that is considered at the joint annual spring fish and
12wildlife rule hearing of the department of natural resources and county meeting of
13the Wisconsin conservation congress, that department shall present the statement
14to the natural resources board for approval. The natural resources board may not
15approve the statement until at least 10 days after publication of the statement under
16sub. (3) and, if the preliminary public hearing and comment period are held by the
17department under s. 227.136, until the board has received and reviewed any public
18comments and feedback from the department under s. 227.136 (5). If no preliminary
19public hearing and comment period are held on a statement of scope by the
20department under s. 227.136 and the natural resources board does not disapprove
21the statement within 30 days after the statement is presented to that board or by the
2211th day after publication of the statement in the register, whichever is later, the
23statement is considered to be approved. No state employee or official may perform
24any activity in connection with the drafting of a proposed rule to which this
1subsection applies except for an activity necessary to prepare the statement of the
2scope of the proposed rule until the natural resources board approves the statement.
SB204,3
3Section 3
. 227.135 (3) of the statutes is amended to read:
SB204,6,174
227.135
(3) If the governor approves a statement of the scope of a proposed rule
5under Subject to sub. (2), the agency shall send an electronic copy of
the a statement
6of the scope of a proposed rule to the legislative reference bureau, in a format
7approved by the legislative reference bureau, for publication in the register. On the
8same day that the agency sends the statement to the legislative reference bureau,
9the agency shall send a copy of the statement to the secretary of administration and
10to the chief clerks of each house of the legislature, who shall distribute the statement
11to the cochairpersons of the joint committee for review of administrative rules. The
12agency shall include with any statement of scope sent to the legislative reference
13bureau the date of the governor's approval of the statement of scope
, if gubernatorial
14approval of the statement of scope is required. The legislative reference bureau shall
15assign a discrete identifying number to each statement of scope and shall include
16that number and
, if applicable, the date of the governor's approval in the publication
17of the statement of scope in the register.
SB204,4
18Section 4
. 227.135 (6) of the statutes is created to read:
SB204,6,2119
227.135
(6) This section does not apply to emergency rules that are considered
20at the joint annual spring fish and wildlife rule hearing of the department of natural
21resources and county meeting of the Wisconsin conservation congress.
SB204,5
22Section
5. 227.137 (2) of the statutes is amended to read:
SB204,6,2523
227.137
(2) An Except as provided in sub. (2m), an agency shall prepare an
24economic impact analysis for a proposed rule before submitting the proposed rule to
25the legislative council staff under s. 227.15.
SB204,6
1Section
6. 227.137 (2m) of the statutes is created to read:
SB204,7,172
227.137
(2m) After the legislative reference bureau publishes under s. 227.135
3(3) a statement of the scope of a proposed rule that is considered at the joint annual
4spring fish and wildlife rule hearing of the department of natural resources and
5county meeting of the Wisconsin conservation congress, and before that department
6submits the notice of the proposed rule to the legislature for review under s. 227.19
7(2), a municipality, an association that represents a farm, labor, business, or
8professional group, or 5 or more persons who would be directly and uniquely affected
9by the proposed rule may submit a petition to the department of administration
10asking the secretary of administration to direct the department of natural resources
11to prepare an economic impact analysis for the proposed rule. If the secretary of
12administration directs the department of natural resources to prepare the economic
13impact analysis, that department shall prepare the economic impact analysis before
14submitting the notice of the proposed rule to the legislature for review under s.
15227.19 (2). The secretary of administration shall direct the department of natural
16resources to prepare an economic impact analysis for the proposed rule if the
17secretary determines that all of the following apply:
SB204,7,2118
(a) The petition was submitted to the department of administration no later
19than 90 days after publication of the statement of the scope of the proposed rule
20under s. 227.135 (3) or no later than 10 days after publication of the notice for a public
21hearing under s. 227.17, whichever is later.
SB204,8,222
(b) The proposed rule would cost affected persons $20,000,000 or more during
23each of the first 5 years after the rule's implementation to comply with the rule or the
24proposed rule would adversely affect in a material way the economy, a sector of the
1economy, productivity, competition, jobs, the environment, public health or safety, or
2state, local, or tribal governments or communities.
SB204,7
3Section
7. 227.137 (3) (intro.) of the statutes is amended to read:
SB204,8,154
227.137
(3) (intro.) An economic impact analysis of a proposed rule
prepared
5under sub. (2) or (4m) shall contain information on the economic effect of the
6proposed rule on specific businesses, business sectors, public utility ratepayers, local
7governmental units, and the state's economy as a whole. The agency or person
8preparing the analysis shall solicit information and advice from businesses,
9associations representing businesses, local governmental units, and individuals that
10may be affected by the proposed rule. The agency or person shall prepare the
11economic impact analysis in coordination with local governmental units that may be
12affected by the proposed rule. The agency or person may also request information
13that is reasonably necessary for the preparation of an economic impact analysis from
14other businesses, associations, local governmental units, and individuals and from
15other agencies. The economic impact analysis shall include all of the following:
SB204,8
16Section 8
. 227.137 (3m) of the statutes is created to read:
SB204,9,217
227.137
(3m) An economic impact analysis of a proposed rule prepared under
18sub. (2m) shall contain information on the effect of the proposed rule on specific
19businesses, business sectors, and the state's economy. When preparing the analysis,
20the department of natural resources shall solicit information and advice from the
21Wisconsin Economic Development Corporation and from businesses, associations,
22governmental units, and individuals that may be affected by the proposed rule. The
23department of natural resources may request information that is reasonably
24necessary for the preparation of the economic impact analysis from other state
1agencies and from businesses, associations, governmental units, and individuals.
2The economic impact analysis shall include all of the following:
SB204,9,43
(a) An analysis and quantification of the problem, including any risks to public
4health or the environment, that the proposed rule is intending to address.
SB204,9,75
(b) An analysis and quantification of the economic impact of the proposed rule,
6including the costs that are reasonably expected to be incurred by the state,
7businesses, governmental units, and affected individuals.
SB204,9,98
(c) An analysis of the benefits of the proposed rule, including how the rule
9reduces the risks and addresses the problems that the rule is intended to address.