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State legislative activity that increases regulatory oversight over agency rulemaking

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This article provides an overview of state legislative activity that increases regulatory oversight over agency rulemaking.

Wisconsin REINS Act (2017)

2017 Wisconsin Act 57, known as the Regulations from the Executive in Need of Scrutiny Act or REINS Act, is a Wisconsin state law signed by Governor Scott Walker (R) on August 9, 2017. The law was modeled on a proposed federal law with the same name. The Wisconsin law is the first REINS Act to take effect at the state level.[1][2][3]

Background

See also: REINS Act

The federal REINS Act, which the Wisconsin state version was modeled on, was initially designed by Tea Party activist Lloyd Rogers in 2009. Rogers contacted former U.S. Representative Geoff Davis (R-Ky.) to propose legislation requiring that "all rules, regulations, or mandates that require citizens, state or local government financial expenditures must first be approved by the U.S. Congress before they can become effective." The proposal was incorporated into the Republican Party's Pledge to America legislative agenda leading up to the 2010 election cycle and was later introduced as legislation in 112th Congress (2011-2013), the 113th Congress (2013-2015), and the 114th Congress (2015-2017). The U.S. House of Representatives has passed every version of the legislation since the 112th Congress. The U.S. Senate, however, had not taken action on the legislation until the U.S. Senate Homeland Security and Governmental Affairs Committee passed a version of the bill, S. 21, out of committee on May 17, 2017.[4][5]

Provisions

The sections below contain a series of quotes explaining the provisions of 2017 Wisconsin Act 57. These quotes are excerpts from a memo prepared by Scott Grosz, principal attorney of the Wisconsin Legislative Council, a nonpartisan agency that provides support staff for the Wisconsin State Legislature. The memo was originally published on August 15, 2017, and revised on September 8, 2017.[6]

Statement of scope and initial agency rule drafting

“ With regard to statements of scope and initial agency rule drafting, Act 57 provides for the review of an agency’s scope statement by the Department of Administration (DOA), prior to presentation of the scope statement to the Governor for his or her approval. Under the Act, DOA must determine whether the agency has explicit authority to promulgate the rule. The Act also provides for the distribution of scope statements to the Co-Chairs of the Joint Committee for Review of Administrative Rules (JCRAR) upon publication of the statement with the Legislative Reference Bureau.


The Act also creates a process for preliminary comment and hearing on a statement of scope. Under the Act, the comment period and hearing may be requested by a Co-Chair of JCRAR or held by the agency on its own initiative. Generally, under current law, an agency may not work on the drafting of a proposed rule until the scope statement is approved by the Governor and the agency head or board with policy-making authority. When applicable, the preliminary comment period and scope statement hearing would take place before approval of the scope statement by the agency head or board with policy-making authority.[6][7]

”

Economic impact analysis

“ The Act makes several changes relating to an agency’s preparation of an EIA as part of its rulemaking process. First, the Act directs an agency to determine whether a proposed rule has $10 million or more in implementation and compliance costs over a two-year period. Generally, upon such a finding, an agency may not promulgate a rule absent authorizing legislation or germane modification to the proposed rule to reduce costs below the $10 million threshold. However, the process for authorizing such rules does not apply to certain rules promulgated by the Department of Natural Resources, if those rules are no more stringent than required under the federal Clean Air Act.


Additionally, prior to gubernatorial approval, the Act authorizes a Co-Chair of JCRAR to request and contract for the preparation of an independent EIA of a proposed rule, with the cost of the independent EIA paid by the Co-Chair’s house of the Legislature if the result varies by less than 15% from the agency’s EIA, and paid by the agency that is proposing the rule if the result varies by more than 15%, except that the Joint Finance Committee may determine the funding source for contracts with a maximum potential obligation in excess of $50,000. Before contracting for the preparation of an EIA, a request for an independent EIA by a Co-Chair of JCRAR must be approved by the Organization Committee of the Co-Chair’s house of the Legislature.

During the JCRAR review period, the Act also authorizes JCRAR to request and contract for the preparation of an independent EIA of a proposed rule, with the cost of the independent EIA paid by the Legislature if the result varies by less than 15% from the agency’s EIA, and paid by the agency that is proposing the rule if the result varies by more than 15%, except that the Joint Finance Committee may determine the funding source for contracts with a maximum potential obligation in excess of $50,000. Before contracting for the preparation of an EIA, a request for an independent EIA by JCRAR must be approved by both the Committee on Senate Organization and the Committee on Assembly Organization.[6][7]

”

Indefinite objection by the Joint Committee for Review of Administrative Rules (JCRAR)

“ The Act creates a new procedure that would, as an alternative to the temporary objection process under current law, allow JCRAR to indefinitely object to any proposed rule, for the same reasons a temporary objection may be made under current law. Under this provision, an agency would not be able to promulgate a rule following indefinite objection unless a bill authorizing such promulgation was enacted into law.[6][7] ”

Gubernatorial approval

“ The Act 57 specifies that an agency must provide notice to the Co-Chairs of JCRAR when a proposed rule is submitted for gubernatorial approval.[6][7] ”

Emergency rules

“ The Act specifies that the process for preliminary comment and hearing on a statement of scope applies to the promulgation of an emergency rule, but that emergency rules are not subject to the limitations relating to authorization of high-cost rules, described above.[6][7] ”

Applications

On April 13, 2018, the Supreme Court of Wisconsin agreed to hear a lawsuit alleging that the state superintendent was in violation of the REINS Act. On June 25, 2019, the court ruled that the state superintendent must follow the REINS Act and submit new rules to the governor before they can go into effect.[8] See the section of this article on Koschkee v. Evers for more information.

See also

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  1. ↑ Wisconsin State Legislature, "2017 Wisconsin Act 57," August 10, 2017
  2. ↑ National Law Review, "Wisconsin REINS Act Signed Into Law," August 10, 2017
  3. ↑ Congress.gov, "H.R.26 - Regulations from the Executive in Need of Scrutiny Act of 2017," accessed November 30, 2017
  4. ↑ The Jackson Sun, "We were never closer to seeing REINS Act become law," January 4, 2017
  5. ↑ Boston Herald, "Smith: Congress can regain power with REINS," January 6, 2017
  6. ↑ 6.0 6.1 6.2 6.3 6.4 6.5 Wisconsin Legislative Council, "Act Memo: 2017 Wisconsin Act 57," September 8, 2017
  7. ↑ 7.0 7.1 7.2 7.3 7.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  8. ↑ Cite error: Invalid <ref> tag; no text was provided for refs named kopinion
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