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.