AB389: Bill Text

LRB-2990/1

GMM:wlj:rs

2011 - 2012 LEGISLATURE

2011 Assembly BILL 389

November 23, 2011 - Introduced by Representatives C. Taylor, Hebl, Bewley, Berceau, Fields, Grigsby, Roys, Sinicki and Turner, cosponsored by Senators Risser and Taylor. Referred to Committee on Judiciary and Ethics.

AB389,2,10 An Act to repeal 227.10 (2m), 227.11 (2) (a) 1. to 3., 227.135 (4), 227.137 (3) (d), 227.137 (3) (e), 227.137 (3) (f), 227.15 (1m) (bm), 227.17 (3) (em), 227.185, 227.19 (4) (b) 1m., 227.19 (4) (d) 7., 227.19 (5) (b) 1m., 227.19 (5) (dm), 227.19 (5) (em), 227.19 (5) (fm), 227.24 (1) (e) 1d., 227.24 (1) (e) 1g. and 227.40 (6); to renumber 227.137 (5), 227.137 (6) (b), 227.137 (6) (c), 227.137 (6) (d) and 227.24 (1) (e) 1m.; to renumber and amend 227.11 (2) (a) (intro.), 227.137 (2), 227.137 (6) (intro.), 227.137 (6) (a) and 227.137 (7); to amend 13.92 (4) (a), 35.93 (4), 227.135 (2), 227.135 (3), 227.137 (title), 227.137 (3) (intro.), 227.137 (3) (a), 227.137 (3) (b), 227.137 (3) (c), 227.137 (4), 227.14 (2) (a) 6., 227.15 (1), 227.19 (2), 227.19 (3) (intro.), 227.19 (4) (b) 1. (intro.), 227.19 (4) (b) 2., 227.19 (4) (b) 2m., 227.19 (4) (b) 3., 227.19 (4) (b) 3m., 227.19 (4) (b) 5., 227.19 (4) (b) 6., 227.19 (4) (c), 227.19 (4) (d) (intro.), 227.19 (4) (e), 227.19 (5) (a), 227.19 (5) (b) 1. (intro.), 227.19 (5) (b) 2., 227.19 (5) (b) 4., 227.19 (5) (c), 227.19 (5) (d), 227.19 (5) (e), 227.19 (5) (f), 227.19 (5) (g) (intro.), 227.19 (6) (title), 227.19 (6) (a) (intro.), 227.19 (6) (a) 1., 227.19 (6) (a) 4., 227.40 (1) and 801.50 (3); and to create 227.135 (5), 227.137 (1), 227.137 (2) (a) and (b), 227.137 (6) (cm) and 227.19 (5) (b) 3. of the statutes; relating to: the authority of a state agency to promulgate rules interpreting the provisions of a statute enforced or administered by the agency and to implement or enforce standards, requirements, and thresholds; elimination of gubernatorial approval of proposed administrative rules; economic impact reports of proposed rules; elimination of statements of scope for emergency rules; legislative review of proposed rules; legislative authorization for certain proposed rules; and venue in a declaratory judgment action seeking judicial review of the validity of an administrative rule.

Analysis by the Legislative Reference Bureau

Introduction

2011 Wisconsin Act 21 made various changes relating to the administrative rule-making process. The act: 1) limited the authority of a state agency (agency) to promulgate administrative rules (rules) interpreting the provisions of a statute enforced or administered by the agency and to implement or enforce standards, requirements, and thresholds; 2) required gubernatorial approval of a proposed rule; 3) expanded the scope of the requirement that an economic impact analysis be prepared for a proposed rule; 4) made various changes relating to legislative review of a proposed rule; and 5) changed the venue of declaratory judgment actions seeking judicial review of the validity of a rule. In addition, 2011 Wisconsin Act 32 required legislative authorization for a rule that would increase the cost of construction or remodeling of a one- or two-family dwelling by more than $1,000.

This bill eliminates those changes, thereby restoring prior law.

Agency authority to promulgate rules and implement standards

2011 Wisconsin Act 21 limited the authority of an agency to promulgate rules interpreting the provisions of any statute enforced or administered by the agency by providing that all of the following apply to the promulgation of such a rule:

1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.

2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.

3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.

This bill eliminates those limitations on an agency's authority to promulgate rules interpreting the provisions of a statute enforced or administered by the agency.

2011 Wisconsin Act 21 also prohibited an agency from implementing or enforcing any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless the standard, requirement, or threshold is explicitly required or permitted by statute or by a rule that has been promulgated in accordance with statutory rule-making procedures. This bill eliminates that prohibition.

Gubernatorial approval of proposed rules

2011 Wisconsin Act 21 made certain changes with respect to the statement of the scope of a proposed rule (statement of scope) that must be approved before any state employee or official may perform any activity in connection with the drafting of the proposed rule. The act:

1. Required a statement of scope to be approved by the governor before a state employee or official may perform any activity in connection with the drafting of a proposed rule. Prior law required only the individual or body with policy-making powers over the subject matter of the proposed rule (policy-making individual or body) to approve a statement of scope before those activities may be performed.

2. Eliminated automatic approval of a statement of scope if the policy-making individual or body does not disapprove the statement of scope within 30 days after it is presented to that individual or body, or by the eleventh day after its publication in the Wisconsin Administrative Register (register), whichever is later. Prior law permitted automatic approval of a statement of scope if the policy-making individual or body did not disapprove the statement of scope within that period.

3. Required an agency to 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. Prior law did not require a revised statement of scope if the scope of a proposed rule changed after approval of the original statement of scope.

4. Required an agency to 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. Prior law did not require a statement of scope for an emergency rule.

This bill eliminates those changes, thereby restoring prior law.

In addition, 2011 Wisconsin Act 21 required an 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 (LRB) for publication. This bill eliminates those requirements.

Economic impact reports for proposed rules

When report must be prepared. 2011 Wisconsin Act 21 required an economic impact analysis, which is an analysis of the economic effect of a proposed rule on specific businesses, business sectors, public utility ratepayers, local governmental units, and the state's economy as a whole, to be prepared for all rules proposed by any agency. The act also required the Department of Administration to issue a report on a proposed rule, and the secretary of administration (secretary) to approve a proposed rule, if the economic impact analysis 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 and individuals as a result of the proposed rule. In addition, the act required an 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.

Prior law required only the Department of Agriculture, Trade and Consumer Protection, the Department of Commerce (which has since been replaced by the Wisconsin Economic Development Corporation), the Department of Natural Resources, the Department of Transportation, or the Department of Workforce Development to prepare an economic impact report, rather than analysis, and only if the secretary directed the report 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. Prior law permitted the secretary to direct the preparation of an economic impact report in any case and required the secretary to direct the preparation of such a report 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.

This bill eliminates the changes made by 2011 Wisconsin Act 21 and restores prior law with respect to when an economic impact report must be prepared.

Content of report. 2011 Wisconsin Act 21 also required certain additional information to be included in an economic impact analysis. Specifically, in addition to the information that was required to be included in an economic impact report under prior law, the act required an economic impact analysis to also include:

1. Information on the effect of a proposed rule on public utility ratepayers.

2. An analysis of alternatives to the proposed rule, including the alternative of not promulgating the rule.

3. A determination made in consultation with the businesses and that individuals who 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.

4. Comparisons with the approaches used by the federal government and by Illinois, Iowa, Michigan, and Minnesota to address the policy problem that the proposed rule is intending to address 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.

5. An assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.

Under prior law, an economic impact report was required to contain information on the effect of the proposed rule on specific businesses, business sectors, and the state's economy and to 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, governmental units, associations, businesses, 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.

This bill eliminates the changes made by 2011 Wisconsin Act 21 and restores prior law with respect to the information that must be included in an economic impact report.

Legislative review of proposed rules

Under current law, when a proposed rule is in final form, the agency must notify the legislature as to that fact and the presiding officer of each house of the legislature must then direct the proposed rule to be referred to one standing committee of his or her house for review. 2011 Wisconsin Act 21 changed the date by which a proposed rule must be submitted to the legislature in order for the proposed rule to be reviewed by the current legislature to the last day of the legislature's final general-business floorperiod of the biennial session. The act, however, permitted the presiding officers of both houses of the legislature to refer a proposed rule submitted to the legislature after that date for review during the current legislative session.

Prior law required a rule to be submitted to the legislature by September 1 of an even-numbered year in order for the proposed rule to be reviewed during the current legislative session and did not permit a proposed rule submitted after that date to be reviewed during the current legislative session.

This bill restores prior law with respect to the date by which a proposed rule must be submitted to the legislature in order for the proposed rule to be reviewed during the current legislative session.

In addition, 2011 Wisconsin Act 21 required all proposed rules reviewed by a standing committee to be referred to the Joint Committee for Review of Administrative Rules (JCRAR) for review. Moreover, the act permitted JCRAR to request modifications to a proposed rule, nonconcur in a standing committee's objection to a proposed rule, concur in a standing committee's approval of a proposed rule, otherwise approve a proposed rule, waive its jurisdiction over a proposed rule, or object to a proposed rule and to take any of those actions with respect to only a part of a proposed rule. Prior law required JCRAR to review a proposed rule only if a standing committee objected to the proposed rule; permitted JCRAR only to request modifications to a proposed rule, nonconcur in a standing committee's objection to a proposed rule, or object to a proposed rule; and did not permit JCRAR to take action on only a part of a proposed rule.

This bill restores prior law with respect to JCRAR review of a proposed rule.

Declaratory judgments as to validity of rules

2011 Wisconsin Act 21 provided that, subject to certain exceptions, the exclusive means of judicial review of the validity of a rule is by an action for declaratory judgment as to the validity of the rule brought in the circuit court for the county where the party asserting the invalidity of the rule resides or has its principal place of business or, if that party is a nonresident or does not have its principal place of business in this state, in the county where the dispute arose. Prior law required those actions to be brought in the circuit court for Dane County. This bill restores prior law.

2011 Wisconsin Act 21 also required a court that enters a declaratory judgment order determining the validity of a rule to notify the LRB of the court's determination and the LRB to publish a notice of that determination in the register and to insert an annotation of that determination in the Wisconsin Administrative Code. This bill eliminates those requirements.

Rules increasing dwelling construction costs

2011 Wisconsin Act 32 required legislative authorization for a rule that would increase the cost of construction or remodeling of a one- or two-family dwelling by more than $1,000. Specifically, the act provided that if JCRAR objects to a proposed rule because the proposed rule would so increase that cost, the Department of Safety and Professional Services may not promulgate the proposed rule until a bill authorizing promulgation of the proposed is enacted into law (rule authorization bill). For all other types of rules, however, if JCRAR objects to a proposed rule, the department proposing the rule may not promulgate the proposed rule until a bill to prevent promulgation of the proposed rule fails to be enacted. This bill eliminates the requirement that a rule authorization bill be enacted before a proposed rule that would increase the cost of construction or remodeling of a one- or two-family dwelling by more than $1,000 may be promulgated, thereby restoring for such a rule the requirement that a bill to prevent promulgation of the rule fail to be enacted before the rule may be promulgated.

For further information see the state and local 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: