227.24(2)(a)(a) At the request of an agency, the joint committee for review of administrative rules may, at any time prior to the expiration date of a rule promulgated under
sub. (1) (a), extend the effective period of the emergency rule or part of the emergency rule for a period specified by the committee not to exceed 60 days. Any number of extensions may be granted under this paragraph, but the total period for all extensions may not exceed 120 days.
227.24(2)(am)
(am) Any request by an agency to extend the effective period of the emergency rule or part of the emergency rule must be made in writing to the joint committee for review of administrative rules no later than 30 days before the initial expiration date of the emergency rule. At the time that the agency submits the written request to the joint committee for review of administrative rules, the agency shall submit a copy of the written request to the presiding officer of each house of the legislature and to the appropriate committees of each house of the legislature, as determined by the presiding officer of each house of the legislature. The presiding officer of each house of the legislature shall enter a statement in the journal of his or her house that the agency has submitted a request to extend the effective period of the emergency rule or part of the emergency rule. This paragraph shall not apply to any subsequent request by the agency to extend the same emergency rule or part of the emergency rule.
227.24(2)(b)
(b) In making the request for an extension, the agency shall provide the committee with the following:
227.24(2)(b)1.
1. Evidence that there is a threat to the public peace, health, safety or welfare that can be avoided only by extension of the emergency rule or part of the emergency rule.
227.24(2)(b)2.
2. Evidence that it is impossible for the agency to promulgate a permanent rule prior to the expiration date of the emergency rule under
sub. (1) (c).
227.24(2)(c)
(c) Whenever the committee extends an emergency rule or part of an emergency rule under
par. (a), it shall file a statement of its action with the agency promulgating the emergency rule, the presiding officer of each house of the legislature, the appropriate committees of each house of the legislature, as determined by the presiding officer of each house of the legislature, the secretary of state and the revisor of statutes. The statement shall identify the specific emergency rule or part of an emergency rule to which it relates. The presiding officer of each house of the legislature shall enter a statement in the journal of his or her house that the emergency rule or part of the emergency rule has been extended.
227.24(3)
(3) Filing. An agency shall file a rule promulgated under
sub. (1) as provided in
s. 227.20, shall mail a copy to the chief clerk of each house and to each member of the legislature at the time that the rule is filed and shall take any other step it considers feasible to make the rule known to persons who will be affected by it. The revisor shall insert in the notice section of each issue of the register a brief description of each rule under
sub. (1) that is currently in effect. Each copy, notice or description of a rule promulgated under
sub. (1) (a) shall be accompanied by a statement of the emergency finding by the agency or by a statement that the rule is promulgated at the direction of the joint committee for review of administrative rules under
s. 227.26 (2) (b).
227.24(3m)
(3m) Review by the small business regulatory review board. On the same day that the agency files a rule under
sub. (3) that may have a significant economic impact on small businesses, as defined in
s. 227.114 (1), the agency shall submit a copy of the rule to the small business regulatory review board. The board may use cost-benefit analysis to determine the fiscal effect of the emergency rule on small businesses and shall determine whether the agency complied with
ss. 227.114 (2) and
(3) and
227.14 (2m). If the board determines that the agency failed to comply with
s. 227.114 (2) or
(3) or
227.14 (2m), the board shall notify the agency of that determination and ask the agency to comply with any of those provisions. In addition, the board may submit suggested changes in the proposed rule to the agency and may include a request that the agency do any of the following:
227.24(3m)(a)
(a) Explain how the agency has responded to comments received from small businesses regarding the emergency rule.
227.24(3m)(b)
(b) Verify that the emergency rule does not conflict with, overlap, or duplicate other rules or federal regulations.
227.24(4)
(4) Public hearing. Notwithstanding
sub. (1) (a) and
(b), an agency shall hold a public hearing within 45 days after it promulgates a rule under
sub. (1). If within that 45-day period the agency submits to the legislative council staff under
s. 227.15 a proposed rule corresponding to the rule under
sub. (1), it shall hold a public hearing on both rules within 90 days after promulgation of the rule under
sub. (1), or within 30 days after the agency receives the report on the proposed rule prepared by the legislative council under
s. 227.15 (2), whichever occurs later.
227.25(1)(1) The revisor shall, in cooperation with the legislative council staff under
s. 227.15 (7), prepare a manual informing agencies about the form, style and placement of rules in the code.
227.25(2)
(2) The revisor shall, upon request, furnish an agency with advice and assistance on the form and mechanics of rule drafting.
227.25(3)
(3) An agency may request an advance commitment as to the title or numbering of a proposed rule by submitting a copy of the proposed rule indicating the requested title and numbering to the revisor prior to filing. As soon as possible after that, the revisor shall either approve the request or inform the agency of any change necessary to preserve uniformity in the code. If the title or numbering of a rule is revised, the revisor shall verify that a certified copy of the revised version has been filed with the secretary of state.
227.25(4)
(4) The revisor may, prior to publication, edit the analysis of a proposed rule and any other material submitted for publication in the code and register, may refer to the fact that those materials are on file or may eliminate them and any reference to them in the code and register if he or she believes they do not appreciably add to an understanding of the rule. The revisor shall submit the edited version of any material to the agency for its comments prior to publication.
227.25 History
History: 1985 a. 182.
227.26
227.26
Legislative review after promulgation; joint committee for review of administrative rules. 227.26(1)
(1)
Definition. In this section, "rule" means all or any part of a rule which has taken effect as provided under
s. 227.22 (2).
227.26(2)(a)(a)
Purpose. The joint committee for review of administrative rules shall promote adequate and proper rules, statements of general policy and interpretations of statutes by agencies and an understanding upon the part of the public respecting the rules, statements and interpretations.
227.26(2)(b)
(b)
Requirement for promulgation. If the committee determines that a statement of policy or an interpretation of a statute meets the definition of a rule, it may direct the agency to promulgate the statement or interpretation as an emergency rule under
s. 227.24 (1) (a) within 30 days after the committee's action.
227.26(2)(c)
(c)
Public hearings. The committee shall hold a public hearing to investigate any complaint with respect to a rule if it considers the complaint meritorious and worthy of attention.
227.26(2)(d)
(d)
Temporary suspension of rules. The committee may suspend any rule by a majority vote of a quorum of the committee. A rule may be suspended only on the basis of testimony in relation to that rule received at a public hearing and only for one or more of the reasons specified under
s. 227.19 (4) (d).
227.26(2)(e)
(e)
Notice. When the committee suspends a rule, it shall publish a class 1 notice, under
ch. 985, of the suspension in the official state newspaper and give any other notice it considers appropriate.
227.26(2)(f)
(f)
Introduction of bills. If any rule is suspended, the committee shall, within 30 days after the suspension, introduce in each house of the legislature, for consideration at any regular session, a bill to repeal the suspended rule.
227.26(2)(g)
(g)
Committee report required. No bill required by this subsection may be considered by the legislature until the committee submits a written report on the proposed bill. The report shall be printed as an appendix to the bills introduced under
par. (f). The report shall contain all of the following:
227.26(2)(g)1.
1. An explanation of the issue regarding the suspended rule and the factual situation out of which the issue arose.
227.26(2)(g)2.
2. Arguments presented for and against the suspension action at the public hearing held under
par. (c).
227.26(2)(g)3.
3. A statement of the action taken by the committee regarding the rule.
227.26(2)(g)4.
4. A statement and analysis of the grounds upon which the committee relies for suspending the rule.
227.26(2)(h)
(h)
Legislative procedure. Upon the introduction of bills by the committee under this subsection, the presiding officer of each house of the legislature shall refer the bill introduced in that house to the appropriate committee, to the calendar scheduling committee or directly to the calendar. If the committee to which a bill is referred makes no report within 30 days after referral, the bill shall be considered reported without recommendation. No later than 40 days after referral, the bills shall be placed on the calendar of each house of the legislature according to its rule governing the placement of proposals on the calendar. A bill introduced under this subsection which is received in the 2nd house shall be referred, reported and placed on the calendar in the same manner as an original bill introduced under this subsection.
227.26(2)(i)
(i)
Timely introduction of bills; effect. If both bills required under this subsection are defeated, or fail to be enacted in any other manner, the rule remains in effect and the committee may not suspend it again. If either bill becomes law, the rule is repealed and may not be promulgated again unless a subsequent law specifically authorizes such action. This paragraph applies to bills that are introduced on or after the day specified under
s. 13.02 (1) for the legislature to convene and before February 1 of an even-numbered year.
227.26(2)(j)
(j)
Late introduction of bills; effect. If the bills required under
par. (f) are introduced on or after February 1 of an even-numbered year and before the next regular session of the legislature commences, as provided under
s. 13.02 (2), unless either house adversely disposes of either bill, the committee shall reintroduce the bills on the first day of the next regular session of the legislature. If the committee is required to reintroduce the bills, the rule to which the bills pertain remains suspended except as provided in
par. (i). If either house adversely disposes of either bill, the rule remains in effect and the committee may not suspend it again. In this paragraph, "adversely disposes of" has the meaning given under
s. 227.19 (5) (g).
227.26(2)(k)
(k)
Biennial report. The committee shall submit a biennial report of its activities to the chief clerk of each house of the legislature, for distribution to the legislature under
s. 13.172 (2), and to the governor and include recommendations.
227.26(3)
(3) Public hearings by state agencies. By a majority vote of a quorum of the committee, the committee may require any agency to hold a public hearing in respect to recommendations made under
sub. (2) and to report its action to the committee within the time specified by the committee. The agency shall publish a class 1 notice, under
ch. 985, of the hearing in the official state newspaper and give any other notice which the committee directs. The hearing shall be conducted in accordance with
s. 227.18 and shall be held not more than 60 days after receipt of notice of the requirement.
227.26 History
History: 1985 a. 182 ss.
1,
3,
50;
1987 a. 186.
227.26 Annotation
Rule suspension under sub. (2) (d) does not violate the separation of powers doctrine. Martinez v. DILHR,
165 Wis. 2d 687,
478 N.W.2d 582 (1992).
227.26 Annotation
Legislative committee review of administrative rules in Wisconsin. Bunn and Gallagher. 1977 WLR 935.
227.27
227.27
Construction of administrative rules. 227.27(2)
(2) The code shall be prima facie evidence in all courts and proceedings as provided by
s. 889.01, but this does not preclude reference to or, in case of a discrepancy, control over a rule filed with the revisor and the secretary of state, and the certified copy of a rule shall also and in the same degree be prima facie evidence in all courts and proceedings.
227.27 History
History: 1983 a. 544;
1985 a. 182 ss.
22,
55 (2), (3); Stats. 1985 s. 227.27.
227.30
227.30
Review of administrative rules or guidelines. 227.30(1)(1) The small business regulatory review board may review the rules and guidelines of any state agency to determine whether any of those rules or guidelines place an unnecessary burden on the ability of small businesses, as defined in
s. 227.114 (1), to conduct their affairs. If the board determines that a rule or guideline places an unnecessary burden on the ability of a small business to conduct its affairs, the board shall submit a report and recommendations regarding the rule or guideline to the joint committee for review of administrative rules.
227.30(2)
(2) When reviewing the report, the joint committee for review of administrative rules shall consider all of the following:
227.30(2)(a)
(a) The continued need for the rule or guideline.
227.30(2)(b)
(b) The nature of the complaints and comments received from the public regarding the rule or guideline.
227.30(2)(d)
(d) The extent to which the rule or guideline overlaps, duplicates, or conflicts with federal regulations, other state rules, or local ordinances.
227.30(2)(e)
(e) The length of time since the rule or guideline has been evaluated.
227.30(2)(f)
(f) The degree to which technology, economic conditions, or other factors have changed in the subject area affected by the rule or guideline since the rule or guideline was promulgated.
227.30(3)
(3) The joint committee for review of administrative rules may refer the report regarding the rule or guideline to the presiding officer of each house of the legislature for referral to a committee under
s. 227.19 (2) or may review the rule or guideline as provided under
s. 227.19 (5).
227.30 History
History: 2003 a. 145.
ADMINISTRATIVE ACTIONS AND JUDICIAL REVIEW
Subch. III of ch. 227 Cross-reference
Cross Reference: See also ch.
NR 2, Wis. adm. code.
227.40
227.40
Declaratory judgment proceedings. 227.40(1)
(1) Except as provided in
sub. (2), the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane County. The officer, board, commission or other agency whose rule is involved shall be the party defendant. The summons in such action shall be served as provided in
s. 801.11 (3) and by delivering a copy to such officer or to the secretary or clerk of the agency where composed of more than one person or to any member of such agency. The court shall render a declaratory judgment in such action only when it appears from the complaint and the supporting evidence that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule in question.
227.40(2)
(2) The validity of a rule may be determined in any of the following judicial proceedings when material therein:
227.40(2)(a)
(a) Any civil proceeding by the state or any officer or agency thereof to enforce a statute or to recover thereunder, provided such proceeding is not based upon a matter as to which the opposing party is accorded an administrative review or a judicial review by other provisions of the statutes and such opposing party has failed to exercise such right to review so accorded;
227.40(2)(c)
(c) Proceedings or prosecutions for violations of county or municipal ordinances;
227.40(2)(d)
(d) Habeas corpus proceedings relating to criminal prosecution;
227.40(2)(e)
(e) Proceedings under s.
66.191, 1981 stats., or
s. 40.65 (2),
106.50,
106.52,
303.07 (7) or
303.21 or
ss. 227.52 to
227.58 or under
ch. 102,
108 or
949 for review of decisions and orders of administrative agencies if the validity of the rule involved was duly challenged in the proceeding before the agency in which the order or decision sought to be reviewed was made or entered.
227.40(3)
(3) In any judicial proceeding other than one set out above, in which the invalidity of a rule is material to the cause of action or any defense thereto, the assertion of such invalidity shall be set forth in the pleading of the party so maintaining the invalidity of such rule in that proceeding. The party so asserting the invalidity of such rule shall, within 30 days after the service of the pleading in which the party sets forth such invalidity, apply to the court in which such proceedings are had for an order suspending the trial of said proceeding until after a determination of the validity of said rule in an action for declaratory judgment under
sub. (1) hereof.
227.40(3)(a)
(a) Upon the hearing of such application if the court is satisfied that the validity of such rule is material to the issues of the case, an order shall be entered staying the trial of said proceeding until the rendition of a final declaratory judgment in proceedings to be instituted forthwith by the party asserting the invalidity of such rule. If the court shall find that the asserted invalidity of a rule is not material to the case, an order shall be entered denying the application for stay.
227.40(3)(b)
(b) Upon the entry of a final order in said declaratory judgment action, it shall be the duty of the party who asserts the invalidity of the rule to formally advise the court of the outcome of the declaratory judgment action so brought as ordered by the court. After the final disposition of the declaratory judgment action the court shall be bound by and apply the judgment so entered in the trial of the proceeding in which the invalidity of the rule is asserted.
227.40(3)(c)
(c) Failure to set forth invalidity of a rule in a pleading or to commence a declaratory judgment proceeding within a reasonable time pursuant to such order of the court or to prosecute such declaratory judgment action without undue delay shall preclude such party from asserting or maintaining such rule is invalid.
227.40(4)(a)(a) In any proceeding pursuant to this section for judicial review of a rule, the court shall declare the rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures.
227.40(4)(b)
(b) Notwithstanding
s. 227.54, in any proceeding under this section for judicial review of a rule, a court may not restrain, enjoin or suspend enforcement of the rule during the course of the proceeding on the basis of the alleged failure of the agency promulgating the rule to comply with
s. 227.114.
227.40(4)(c)
(c) Notwithstanding
par. (a), if a court finds that an agency did not adequately comply with
s. 227.114, the court may not declare the rule invalid on that basis but shall order the agency to comply with that section and to propose any amendments to the rule that are necessary within a time specified by the court. Unless the legislature acts under
s. 227.26 (2) to suspend the rule, the rule remains in effect while the agency complies with the order.
227.40(5)
(5) The joint committee for review of administrative rules shall be served with a copy of the petition in any action under this section and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard.
227.40 Annotation
The plaintiff could not bring a declaratory judgment action under sub. (1) since it could contest the validity of a rule in an action brought against the plaintiff under sub. (2). Phillips Plastics Corp. v. DNR,
98 Wis. 2d 524,
297 N.W.2d 69 (Ct. App. 1980).
227.40 Annotation
Pleading requirements for challenging administrative rules are established. The record for judicial review and the scope of judicial review are discussed. Liberty Homes, Inc. v. DILHR,
136 Wis. 2d 368,
401 N.W.2d 805 (1987).
227.40 Annotation
A failure to comply with this section prevented the trial court from acquiring jurisdiction. Harris v. Reivitz,
142 Wis. 2d 82,
417 N.W.2d 50 (Ct. App. 1987).
227.40 Annotation
Under sub. (5), the plaintiff must serve JCRAR within 60 days of filing, pursuant to s. 893.02. Richards v. Young,
150 Wis. 2d 549,
441 N.W.2d 742 (1989).
227.40 AnnotationIn a conflict between a statute and a rule, the statute controls. Debeck v. DNR,
172 Wis. 2d 382,
493 N.W.2d 234 (Ct. App. 1992).
227.40 Annotation
This section encompasses policies or other statements, standards, or orders that meet the definition of a rule under s. 227.01 (13) but have not been promulgated as rules under s. 227.10. Heritage Credit Union v. Office of Credit Unions, 2001 WI App 213,
247 Wis. 2d 589,
634 N.W.2d 593.
227.40 Annotation
The trial court erred by denying a motion to change venue to Dane County when the motion asserted that a department of corrections system was a rule, although it was never promulgated as a rule, and therefore, the "rule" was invalid. Johnson v. Berge, 2003 WI App 51,
260 Wis. 2d 758,
659 N.W.2d 418,
02-0911.
227.40 Annotation
How to review an administrative rule. Levine. WBB Oct. 1983.
227.40 Annotation
The standard of review of administrative rules in Wisconsin. Zabrowski. 1982 WLR 691.
227.41
227.41
Declaratory rulings. 227.41(1)(1) Any agency may, on petition by any interested person, issue a declaratory ruling with respect to the applicability to any person, property or state of facts of any rule or statute enforced by it. Full opportunity for hearing shall be afforded to interested parties. A declaratory ruling shall bind the agency and all parties to the proceedings on the statement of facts alleged, unless it is altered or set aside by a court. A ruling shall be subject to review in the circuit court in the manner provided for the review of administrative decisions.
227.41(2)
(2) Petitions for declaratory rulings shall conform to the following requirements:
