SB319: Bill Text

LRB-3499/1

GMM:kjf:rs

2011 - 2012 LEGISLATURE

2011 Senate BILL 319

December 6, 2011 - Introduced by Senators Vinehout, Holperin and Shilling, cosponsored by Representatives Molepske Jr, Milroy, Hebl, Berceau and Clark. Referred to Committee on Judiciary, Utilities, Commerce, and Government Operations.

SB319,1,11 An Act to renumber 227.137 (5), 227.137 (6) (a), 227.137 (6) (b), 227.137 (6) (c) and 227.137 (6) (d); to renumber and amend 227.137 (6) (intro.) and 227.137 (7); to amend 227.135 (2), 227.135 (3), 227.137 (2), 227.137 (3) (intro.), 227.137 (4), 227.14 (2) (a) 6., 227.17 (3) (em), 227.185, 227.19 (3) (intro.), 227.24 (1) (e) 1d. and 227.24 (1) (e) 1g.; and to create 227.135 (2m), 227.135 (5), 227.137 (2m), 227.137 (3m), 227.137 (4m) and 227.137 (6) (cm) of the statutes; relating to: elimination of the requirement that the governor approve a proposed rule that was 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 and limitation of the scope of the requirement that an economic impact analysis be prepared for such a proposed rule.

Analysis by the Legislative Reference Bureau

Introduction

2011 Wisconsin Act 21 made various changes relating to the administrative rule-making process, including requiring gubernatorial approval of the statement of the scope of a proposed rule (statement of scope) and the final draft of a proposed rule and expanding the scope of the requirement that an economic impact analysis be prepared for a proposed rule.

This bill eliminates those changes, thereby restoring prior law, with respect to a proposed rule that was 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.

Gubernatorial approval of proposed rules

2011 Wisconsin Act 21 made certain changes with respect to the 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, 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, with respect to a proposed rule that was 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.

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 for publication.

This bill eliminates those requirements with respect to a proposed rule that was 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.

Economic impact analyses 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 an economic impact analysis to be prepared only if the secretary directed 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. Prior law permitted the secretary to direct the preparation of an economic impact analysis in any case and required 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.

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 for a proposed rule that was 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.

Content of analysis. 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 analysis 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 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 analysis 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 analysis for a proposed rule that was 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.

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:

SB319, s. 1 Section 1. 227.135 (2) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

SB319,5,3 227.135 (2) An Except as provided in sub. (2m), an agency that has prepared a statement of the scope of the proposed rule shall present the statement to the governor and to the individual or body with policy-making powers over the subject matter of the proposed rule for approval. 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 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). No state employee or official may perform any activity in connection with the drafting of a proposed rule to which this subsection applies 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 approves the statement.

SB319, s. 2 Section 2. 227.135 (2m) of the statutes is created to read:

SB319,5,17 227.135 (2m) If the department of natural resources prepares a statement of the scope of a proposed rule that was 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, that department shall present the statement to the natural resources board for approval. The natural resources board may not approve the statement until at least 10 days after publication of the statement under sub. (3). If the natural resources board does not disapprove the statement within 30 days after the statement is presented to that board or by the 11th day after publication of the statement in the register, whichever is later, the statement is considered to be approved. No state employee or official may perform any activity in connection with the drafting of a proposed rule to which this subsection applies except for an activity necessary to prepare the statement of the scope of the proposed rule until the natural resources board approves the statement.

SB319, s. 3 Section 3. 227.135 (3) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

SB319,6,2 227.135 (3) If the governor approves a statement of the scope of a proposed rule under sub. (2), the agency shall send the statement to the legislative reference bureau for publication in the register. If the natural resources board approves a statement of the scope of a proposed rule under sub. (2m), the department of natural resources shall send the statement to 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.

SB319, s. 4 Section 4. 227.135 (5) of the statutes is created to read:

SB319,6,6 227.135 (5) This section does not apply to emergency rules that were 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.

SB319, s. 5 Section 5. 227.137 (2) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

SB319,6,11 227.137 (2) An Except as provided in sub. (2m), 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.

SB319, s. 6 Section 6. 227.137 (2m) of the statutes is created to read:

SB319,7,4 227.137 (2m) After the department of natural resources publishes under s. 227.135 (3) a statement of the scope of a proposed rule that was 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, and before that department submits the proposed rule to the legislature for review under s. 227.19 (2), a municipality, an association that represents a farm, labor, business, or professional group, or 5 or more persons who would be directly and uniquely affected by the proposed rule may submit a petition to the department of administration asking the secretary of administration to direct the department of natural resources to prepare an economic impact analysis for the proposed rule. If the secretary of administration directs the department of natural resources to prepare the economic impact analysis, that department shall prepare the economic impact analysis before submitting the proposed rule to the legislature for review under s. 227.19 (2). The secretary of administration shall direct the department of natural resources to prepare an economic impact analysis for the proposed rule before submitting the proposed rule to the legislature for review under s. 227.19 (2) if the secretary determines that all of the following apply:

SB319,7,8 (a) The petition was submitted to the department of administration no later than 90 days after publication of the statement of the scope of the proposed rule under s. 227.135 (3) or no later than 10 days after publication of the notice for a public hearing under s. 227.17, whichever is later.

SB319,7,13 (b) The proposed rule would cost affected persons $20,000,000 or more during each of the first 5 years after the rule's implementation to comply with the rule or the proposed 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.

SB319, s. 7 Section 7. 227.137 (3) (intro.) of the statutes, as affected by 2011 Wisconsin Act 21, is amended to read:

SB319,8,2 227.137 (3) (intro.) An economic impact analysis of a proposed rule prepared under sub. (2) 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. When preparing the analysis, the agency 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 shall prepare the economic impact analysis in coordination with local governmental units that may be affected by the proposed rule. The agency may 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:

SB319, s. 8 Section 8. 227.137 (3m) of the statutes is created to read: