SB328: Bill Text

LRB-1526/1

MCP:emw&amn

2021 - 2022 LEGISLATURE

2021 Senate BILL 328

April 28, 2021 - Introduced by Senators Smith, Carpenter, Ringhand and Agard, cosponsored by Representatives Spreitzer, Anderson, Baldeh, Billings, Cabrera, Considine, Doyle, Hebl, Pope, Sinicki, Snodgrass, Subeck and Vruwink. Referred to Committee on Labor and Regulatory Reform.

SB328,1,9 An Act to renumber and amend 227.19 (2); to amend 227.135 (2), 227.135 (3), 227.137 (2), 227.137 (3) (intro.), 227.137 (4), 227.14 (2) (a) 6., 227.14 (4m), 227.15 (1), 227.15 (1m) (bm), 227.185, 227.19 (3) (intro.), 227.19 (4) (b) 1m., 227.19 (5) (b) 1m., 227.24 (1) (e) 1d. and 227.24 (1) (e) 1g.; and to create 227.135 (2m), 227.135 (6), 227.137 (2m), 227.137 (3m), 227.137 (4r) and 227.19 (2) (b) 2. of the statutes; relating to: the procedure for promulgating a proposed rule relating to fish or wildlife that is considered at the joint annual spring hearing of the Department of Natural Resources and the Wisconsin Conservation Congress.

Analysis by the Legislative Reference Bureau

This bill makes various changes to the rule-making process with respect to proposed administrative rules relating to fish or wildlife that are considered at the joint annual spring hearing of the Department of Natural Resources and 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 the 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. In addition, 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 11th day after its publication in the Wisconsin Administrative Register, whichever is later.

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.

Finally, 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.

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 the 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 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.

The 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 the 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 intended 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 the 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 1) the agency modifies the proposed rule to address its implementation and compliance costs or 2) 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. The 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.

Finally, 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:

SB328,1 Section 1. 227.135 (2) of the statutes is amended to read:

SB328,5,7 227.135 (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 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 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 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).

SB328,2 Section 2. 227.135 (2m) of the statutes is created to read:

SB328,5,25 227.135 (2m) If the department of natural resources prepares a statement of the scope of a proposed rule relating to fish or wildlife that is considered at the joint annual spring hearing of the department of natural resources and 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) and, if the preliminary public hearing and comment period are held by the department under s. 227.136, until the board has received and reviewed any public comments and feedback from the department under s. 227.136 (5). If no preliminary public hearing and comment period are held on a statement of scope by the department under s. 227.136 and 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.

SB328,3 Section 3. 227.135 (3) of the statutes is amended to read:

SB328,6,15 227.135 (3) If the governor approves a statement of the scope of a proposed rule under Subject to sub. (2), the agency shall send an electronic copy of the a statement of the scope of a proposed rule 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 , if gubernatorial approval of the statement of scope is required. The legislative reference bureau shall assign a discrete identifying number to each statement of scope and shall include that number and, if applicable, the date of the governor's approval in the publication of the statement of scope in the register.

SB328,4 Section 4. 227.135 (6) of the statutes is created to read:

SB328,6,19 227.135 (6) This section does not apply to emergency rules relating to fish or wildlife that are considered at the joint annual spring hearing of the department of natural resources and the Wisconsin conservation congress.

SB328,5 Section 5. 227.137 (2) of the statutes is amended to read:

SB328,6,23 227.137 (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.

SB328,6 Section 6. 227.137 (2m) of the statutes is created to read:

SB328,7,16 227.137 (2m) After the legislative reference bureau publishes under s. 227.135 (3) a statement of the scope of a proposed rule relating to fish or wildlife that is considered at the joint annual spring hearing of the department of natural resources and the Wisconsin conservation congress, and before the department of natural resources submits the notice of 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 notice of 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 if the secretary determines that all of the following apply:

SB328,7,20 (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.

SB328,7,25 (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.

SB328,7 Section 7. 227.137 (3) (intro.) of the statutes is amended to read:

SB328,8,13 227.137 (3) (intro.) An economic impact analysis of a proposed rule prepared under sub. (2) or (4m) 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:

SB328,8 Section 8. 227.137 (3m) of the statutes is created to read:

SB328,8,24 227.137 (3m) An economic impact analysis of a proposed rule prepared under sub. (2m) shall contain information on the effect of the proposed rule on specific businesses, business sectors, and the state's economy. When preparing the analysis, the department of natural resources shall solicit information and advice from the Wisconsin Economic Development Corporation and from businesses, associations, governmental units, and individuals that may be affected by the proposed rule. The department of natural resources may request information that is reasonably necessary for the preparation of the economic impact analysis from other state agencies and from businesses, associations, governmental units, and individuals. The economic impact analysis shall include all of the following:

SB328,9,2 (a) An analysis and quantification of the problem, including any risks to public health or the environment, that the proposed rule is intending to address.

SB328,9,5 (b) An analysis and quantification of the economic impact of the proposed rule, including the costs that are reasonably expected to be incurred by the state, businesses, governmental units, and affected individuals.

SB328,9,7 (c) An analysis of the benefits of the proposed rule, including how the rule reduces the risks and addresses the problems that the rule is intended to address.