SB204: Bill Text

MED:ahe

2019 - 2020 LEGISLATURE

2019 Senate BILL 204

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 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 that is 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.

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

SB204,5,8 227.135 (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).

SB204,2 Section 2 . 227.135 (2m) of the statutes is created to read:

SB204,6,2 227.135 (2m) If the department of natural resources prepares a statement of the scope of a proposed rule that is 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) 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.

SB204,3 Section 3 . 227.135 (3) of the statutes is amended to read:

SB204,6,17 227.135 (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.

SB204,4 Section 4 . 227.135 (6) of the statutes is created to read:

SB204,6,21 227.135 (6) This section does not apply to emergency rules that are 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.

SB204,5 Section 5. 227.137 (2) of the statutes is amended to read:

SB204,6,25 227.137 (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.

SB204,6 Section 6. 227.137 (2m) of the statutes is created to read:

SB204,7,17 227.137 (2m) After the legislative reference bureau publishes under s. 227.135 (3) a statement of the scope of a proposed rule that is 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 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:

SB204,7,21 (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.

SB204,8,2 (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.

SB204,7 Section 7. 227.137 (3) (intro.) of the statutes is amended to read:

SB204,8,15 227.137 (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:

SB204,8 Section 8 . 227.137 (3m) of the statutes is created to read:

SB204,9,2 227.137 (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:

SB204,9,4 (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.

SB204,9,7 (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.

SB204,9,9 (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.

SB204,9 Section 9. 227.137 (4) of the statutes is amended to read:

SB204,9,23 227.137 (4) On the same day that the agency submits the an economic impact analysis prepared under sub. (2) to the legislative council staff under s. 227.15 (1), the agency shall also submit that analysis to the department of administration, to the governor, and to the chief clerks of each house of the legislature, who shall distribute the analysis to the presiding officers of their respective houses, to the chairpersons of the appropriate standing committees of their respective houses, as designated by those presiding officers, and to the cochairpersons of the joint committee for review of administrative rules. If a proposed rule is modified after the economic impact analysis is submitted under this subsection so that the economic impact of the proposed rule is significantly changed, the agency shall prepare a revised economic impact analysis for the proposed rule as modified. A revised economic impact analysis shall be prepared and submitted in the same manner as an original economic impact analysis is prepared and submitted.

SB204,10 Section 10 . 227.137 (4r) of the statutes is created to read:

SB204,10,3 227.137 (4r) The department of natural resources shall submit an economic impact analysis prepared under sub. (2m) to the legislative council staff, to the department of administration, and to the petitioner.

SB204,11 Section 11. 227.14 (2) (a) 6. of the statutes is amended to read:

SB204,10,8 227.14 (2) (a) 6. Any analysis and supporting documentation that the agency used in support of the agency's determination of the rule's effect on small businesses under s. 227.114 or that was used when the agency prepared an economic impact analysis under s. 227.137 (3) (2) or (2m).

SB204,12 Section 12 . 227.14 (4m) of the statutes is amended to read:

SB204,11,3 227.14 (4m) Notice of submittal to legislative council staff. On the same day that an agency submits a proposed rule to the legislative council staff under s. 227.15, the agency shall prepare a written notice of the agency's submittal to the legislative council staff. The notice shall include a statement of the date on which the proposed rule has been submitted to the legislative council staff for review, of the subject matter of the proposed rule, and of whether a public hearing on the proposed rule is required under s. 227.16, and shall identify the organizational unit within the agency that is primarily responsible for the promulgation of the rule. The notice shall also include a statement containing the identifying number of the statement of scope for the proposed rule assigned under s. 227.135 (3), the date of publication and issue number of the register in which the statement of scope is published, and the date of approval of the statement of scope by the individual or body with policy-making powers over the subject matter of the proposed rule under s. 227.135 (2) or (2m). The notice shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule. The agency shall send an electronic copy of the notice 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 notice to the legislative reference bureau, the agency shall send a copy of the notice to the secretary of administration.

SB204,13 Section 13 . 227.15 (1) of the statutes is amended to read:

SB204,11,18 227.15 (1) Submittal to legislative council staff. Prior to a public hearing on a proposed rule required under s. 227.16 or, if no such public hearing is required, prior to notice under s. 227.19, an agency shall submit the proposed rule to the legislative council staff for review. The proposed rule shall be in the form required under s. 227.14 (1), and shall include the material required under s. 227.14 (2), (3), and (4), any housing impact analysis required under s. 227.115 (2) (a), any revised housing impact analysis required under s. 227.115 (2) (b), the any economic impact analysis required under s. 227.137 (2) or (2m), and any revised economic impact analysis required under s. 227.137 (4). An agency may not hold a public hearing on a proposed rule or give notice under s. 227.19 until after it has received a written report of the legislative council staff review of the proposed rule or until after the initial review period of 20 working days under sub. (2) (intro.), whichever comes first. An agency may give notice of a public hearing prior to receipt of the legislative council staff report. This subsection does not apply to rules promulgated under s. 227.24.

SB204,14 Section 14 . 227.15 (1m) (bm) of the statutes is amended to read:

SB204,11,22 227.15 (1m) (bm) The Any economic impact analysis required under s. 227.137 (2) or (2m), any revised economic impact analysis required under s. 227.137 (4), and any independent economic impact analysis prepared under s. 227.137 (4m).

SB204,15 Section 15 . 227.185 of the statutes is amended to read:

SB204,12,10 227.185 Approval by governor. After Except as provided in this section, after a proposed rule is in final draft form, the agency shall submit the proposed rule to the governor for approval. The governor, in his or her discretion, may approve or reject the proposed rule. If the governor approves a proposed rule, the governor shall provide the agency with a written notice of that approval. No Except as provided in this section, no proposed rule may be submitted to the legislature for review under s. 227.19 (2) unless the governor has approved the proposed rule in writing. The agency shall notify the joint committee for review of administrative rules whenever it submits a proposed rule for approval under this section. This section does not apply to a proposed rule that is 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.

SB204,16 Section 16 . 227.19 (2) of the statutes is renumbered 227.19 (2) (a) and amended to read:

SB204,12,16 227.19 (2) (a) An agency shall submit a notice to the chief clerk of each house of the legislature when a proposed rule is in final draft form. The notice shall be submitted in triplicate and shall be accompanied by a report in the form specified under sub. (3). A

SB204,12,22 (b) 1. Except as provided in subd. 2., a notice received under this subsection after the last day of the legislature's final general-business floorperiod in the biennial session as established in the joint resolution required under s. 13.02 (3) shall be considered received on the first day of the next regular session of the legislature, unless the presiding officers of both houses direct referral of the notice and report under this subsection before that day.

SB204,13,2 (c) The presiding officer of each house of the legislature shall, within 10 working days following the day on which the a notice and report are received under this subsection, direct the appropriate chief clerk to refer the notice and report to one standing committee.

SB204,13,9 (d) The agency shall submit to the legislative reference bureau for publication in the register, in an electronic format approved by the legislative reference bureau, a statement that a proposed rule has been submitted to the chief clerk of each house of the legislature. The agency shall also include in the statement the date of approval of the proposed rule by the governor under s. 227.185 if the proposed rule is subject to gubernatorial approval. Each chief clerk shall enter a similar statement in the journal of his or her house.

SB204,17 Section 17 . 227.19 (2) (b) 2. of the statutes is created to read:

SB204,13,17 227.19 (2) (b) 2. A notice received under this subsection on or after September 1 of an even-numbered year shall be considered received on the first day of the next regular session of the legislature, unless the presiding officers of both houses direct referral of the notice and report under this subsection before that day. This subdivision applies only with respect to a proposed rule that is 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.

SB204,18 Section 18 . 227.19 (3) (intro.) of the statutes is amended to read:

SB204,14,4 227.19 (3) Form of report. (intro.) The report required under sub. (2) shall be in writing and shall include the proposed rule in the form specified in s. 227.14 (1); the material specified in s. 227.14 (2), (3), and (4); including any statement, suggested changes, or other material submitted to the agency by the small business regulatory review board; a copy of any economic impact analysis prepared by the agency under s. 227.137 (2) or (2m); a copy of any revised economic impact analysis prepared by the agency under s. 227.137 (4); a copy of any independent economic impact analysis prepared under s. 227.137 (4m); a copy of any energy impact report received from the public service commission under s. 227.117 (2); and a copy of any recommendations of the legislative council staff. The report shall also include all of the following:

SB204,19 Section 19 . 227.19 (4) (b) 1m. of the statutes is amended to read:

SB204,14,14 227.19 (4) (b) 1m. Except as provided under subd. 5., if a notice and report received under sub. (2) after the last day of the legislature's final general-business floorperiod as specified in sub. (2) is referred for committee review before the first day of the next regular session of the legislature, the committee review period for each committee to which the proposed rule is referred extends to the day specified under s. 13.02 (1) for the next legislature to convene. This subdivision does not apply with respect to a proposed rule that is 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.

SB204,20 Section 20 . 227.19 (5) (b) 1m. of the statutes is amended to read:

SB204,15,5 227.19 (5) (b) 1m. If a notice and report received under sub. (2) after the last day of the legislature's final general-business floorperiod as specified in sub. (2) is referred for review by the joint committee for review of administrative rules before the first day of the next regular session of the legislature, the review period for the joint committee for review of administrative rules extends to the day specified under s. 13.02 (1) for the next legislature to convene. During that review period, the joint committee for review of administrative rules may meet and take action in executive session and may take any action on the proposed rule in whole or in part permitted under this subsection. If the joint committee for review of administrative rules meets in executive session with respect to a proposed rule or part of a proposed rule to which a committee has objected, that joint committee shall take action as permitted under this subsection with respect to the committee's objection. This subdivision does not apply with respect to a proposed rule that is 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.

SB204,21 Section 21 . 227.24 (1) (e) 1d. of the statutes is amended to read:

SB204,15,19 227.24 (1) (e) 1d. Prepare Except as provided in s. 227.135 (6), prepare a statement of the scope of the proposed emergency rule as provided in s. 227.135 (1), obtain approval of the statement as provided in s. 227.135 (2), send the statement to the legislative reference bureau for publication in the register as provided in s. 227.135 (3), and hold a preliminary public hearing and comment period if directed under s. 227.136 (1). If the agency changes the scope of a proposed emergency rule as described in s. 227.135 (4), the agency shall prepare and obtain approval of a revised statement of the scope of the proposed emergency rule as provided in s. 227.135 (4). No state employee or official may perform any activity in connection with the drafting of a proposed emergency rule except for an activity necessary to prepare the statement of the scope of the proposed emergency rule until the governor and the individual or body with policy-making powers over the subject matter of the proposed emergency rule approve the statement.

SB204,22 Section 22 . 227.24 (1) (e) 1g. of the statutes is amended to read:

SB204,16,5 227.24 (1) (e) 1g. Submit Except as provided in this subdivision, submit the proposed emergency rule in final draft form to the governor for approval. The governor, in his or her discretion, may approve or reject the proposed emergency rule. If the governor approves a proposed emergency rule, the governor shall provide the agency with a written notice of that approval. An agency may not file an emergency rule with the legislative reference bureau as provided in s. 227.20 and an emergency rule may not be published until the governor approves the emergency rule in writing. This subdivision does not apply to a proposed emergency rule that is 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.