Administrative Rule Review Report #AR09-053
Legislative Service Office
08-Sep-09
AGENCY: Wyoming Livestock Board.
DATE SUBMITTED: August 28, 2009.
SUBJECT: Chapter 6, Brucellosis Risk Mitigation Activities - Project Eligibility and Reimbursement.
NATURE OF RULES: Legislative, Procedural
STATUTORY AUTHORITY: W.S. 11-18-103(a)(v) and 2009 HB0001, Section 051, Footnote 2
DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:
Notice of the proposed adoption of new rules was provided by the LSO as required by W.S. 28‑9‑103(d). No comments have been received to date. Otherwise, procedural compliance is apparently complete to date.
SUMMARY OF RULES: Generally, these new rules are being promulgated to allow for compensation for brucellosis testing, spaying, adult vaccination and other brucellosis risk mitigation measures.
More specifically:
Section 5 provides for the compensation for brucellosis surveillance testing, spaying and adult brucellosis vaccination with payments made directly to a Wyoming accredited veterinarian. Section 5 provides for fees ranging from $3.50 to $6.50 per head, depending on location and specific activity.
Section 6 provides for the compensation for mandatory brucellosis testing with payments to Wyoming accredited veterinarians or approved livestock markets. The fees under this section range from $2.00 to $5.00 per head, depending on the activity.
Section 7 provides for the compensation of approved brucellosis risk mitigation projects. Payments would be pursuant to a contract between the Agency and a livestock producer who has a valid herd plan which includes a herd risk assessment and an approved brucellosis risk mitigation project approved by the Agency. Any payment would be on a cost share basis with the producer.
FINDINGS: Except as noted below regarding Section 7, the rules appear to be within the scope of statutory authority and legislative intent.
Administrative Rule Review Report #AR09-053
Legislative Service Office
08-Sep-09
Page 2
2009 Senate File 0031 (SF0031) was enacted which provides for spaying heifers and adult vaccinations in addition to the existing brucellosis surveillance testing. SF0031 provides for the compensation of brucellosis testing, spaying or adult vaccination equipment, supplies and postage.
2009 Senate File 0010 (SF0010), which would have extended the brucellosis surveillance program to include other management practices in addition to spaying and testing livestock, passed the Senate but was not reported out of its House Committee and therefore failed to pass the House of Representatives. SF0010 would have provided for fencing, feed and other preventative activities undertaken for the purpose of keeping cattle separated from elk in areas of high brucellosis prevalence in elk, under certain conditions.
Section 7 of these rules provides for payments to producers for such things as strategic fencing, strategic elk or bison feeding, strategic water source development and certain emergency activities. Language similar to what is provided in Section 7 of these rules was rejected by the Governor in his Supplemental budget recommendation, as presenting constitutional, policy and precedent problems. Instead, the Governor recommended $100,000.00 subject to the following:
No funds can be expended until and unless detailed rules are adopted by the Board carefully delineating the eligible activities and limiting expenditure to only projects or portions of projects that specifically benefit the State's interest in Brucellosis Risk Management as contrasted with benefiting a private party. (Emphasis added).
The language that was included in the 2009 Budget footnote for the Livestock Board was:
2. Of this general fund appropriation, one hundred thousand dollars ($100,000.00) appropriated during the 2009 legislative session for brucellosis testing shall not be expended until the board promulgates rules and regulations establishing what items and procedures are eligible expenditures under this footnote. When promulgating such rules, the board shall limit eligible expenditures to those items or procedures that specifically benefit the state's interest in brucellosis risk management. (Emphasis added)
One distinct difference in the Governor's recommendation and the budget footnote is the Governor references "projects or portions of projects" where the budget bill references "items or procedures". "Items or procedures" are consistent with brucellosis testing, but not with "projects" such as those listed in Section 7.
Administrative Rule Review Report #AR09-053
Legislative Service Office
08-Sep-09
Page 3
Another distinction is the Governor's recommendation asked for a contrast between the benefit to the state and the benefit to a private party. That contrast was removed from the budget footnote. Had the legislature intended to have the balancing test, the Governor's language regarding the contrast between the state and private benefits would have been included.
In order to reach the conclusion to allow project expenses as provided for in Section 7 of these rules, the language in the second sentence of Footnote 2 would have to be split from the first sentence which is specific to "brucellosis testing" and "items or procedures" would have to have a broader meaning that what is authorized in statute. If the legislature had intended for "projects" to be included under Footnote 2, the legislature could have included "projects" in the final language. When the language in Footnote 2 is read in its entirety, the second sentence covering "items and procedures" appears to relate to the "brucellosis testing" described in the first sentence, thereby precluding the producer project expenses included in Section 7.
Considering the entire scope of the Brucellosis actions taken during 2009 legislative session, it could be argued that had the legislature intended to mean the funding could be spent on projects or expenses other than brucellosis testing, spaying heifers or adult vaccinations, it should have used broader language.
Therefore, the expansion of the brucellosis program as described in Section 7 appears to be beyond the scope of statutory authority and legislative intent.
STAFF RECOMMENDATION:
That the Council recommend that the Governor use his line item veto authority under 16-3-103(d) to address the concerns raised in this rule review report. This could be done by lining out Chapter 6, Section 3(a)(ii) and Section 7. This could eliminate the need to repromulgate the rules to address the concerns raised. Otherwise the recommendation would be for the Governor to direct the agency to rescind the rules and address the concerns raised.
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Maxine R. Weaver
Staff Attorney
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Lynda G. Cook
Staff Attorney
MRW/