Chapter 227

227.16 227.16 When hearings required.

227.16(1) (1) In addition to any preliminary public hearing and comment period held under s. 227.136, all rule making by an agency shall be preceded by notice and public hearing as provided in ss. 227.17 and 227.18, except as provided in sub. (2).

227.16(2) (2) Subsection (1) does not apply if any of the following conditions exist:

227.16(2)(b) (b) The proposed rule brings an existing rule into conformity with a statute that has been changed or enacted or with a controlling judicial decision.

227.16(2)(c) (c) The proposed rule is promulgated under s. 227.24, in which case the agency shall hold a hearing under s. 227.24 (4).

227.16(2)(d) (d) The proposed rule is being promulgated at the direction of the joint committee for review of administrative rules under s. 227.26 (2) (b).

227.16(2)(e) (e) The proposed rule, as submitted to the legislative council staff under s. 227.15 (1), is sent to the legislative reference bureau in an electronic format approved by the legislative reference bureau and published in the notice section of the register with a statement that the proposed rule will be promulgated without public hearing unless a petition is received by the agency within 30 days after publication of the notice, signed by any of the following:

227.16(2)(e)1. 1. Twenty-five natural persons who will be affected by the proposed rule.

227.16(2)(e)2. 2. A municipality that will be affected by the proposed rule.

227.16(2)(e)3. 3. An association which is representative of a farm, labor, business or professional group that will be affected by the proposed rule.

227.16(3) (3) If the agency receives a petition under sub. (2) (e), it may not proceed with the proposed rule until after it has given notice and held a public hearing under ss. 227.17 and 227.18.

227.16(4) (4) The exemptions in sub. (2) do not apply if another statute specifically requires the agency to hold a hearing prior to promulgating the proposed rule under consideration.

227.16(5) (5) If a hearing is not required because of an exemption under sub. (2), the agency may hold a hearing on the proposed rule under ss. 227.17 and 227.18.

227.16 History History: 1985 a. 182; 1995 a. 106; 2013 a. 20; 2017 a. 57.

227.16 Annotation The purpose of a public hearing is to give interested parties not only a chance to be heard, but to have an influence in the final form of the regulations involved. That purpose would not be served if the adopted rules were required to be identical in form to those proposed before the hearing. HM Distributors of Milwaukee, Inc. v. Department of Agriculture, 55 Wis. 2d 261, 198 N.W.2d 598 (1972).

227.17 227.17 Notice of hearing.

227.17(1) (1) If a hearing is required under s. 227.16, the agency shall do all of the following:

227.17(1)(a) (a) Send written notice of the hearing, in an electronic format approved by the legislative reference bureau, to the legislative reference bureau for publication in the register and, if required, publish the notice in a local newspaper.

227.17(1)(b) (b) Send an electronic copy of the written notice of the hearing under par. (a) to each member of the legislature who has filed a written request for notice with the legislative reference bureau. Upon request, the legislative reference bureau shall furnish an agency with the name and address of each legislator who has requested notice.

227.17(1)(bm) (bm) Send written notice of the hearing to the secretary of administration on the same day that the notice is sent to the legislative reference bureau under par. (a).

227.17(1)(c) (c) Take any action it considers necessary to provide notice to other interested persons.

227.17(2) (2) The notice under sub. (1) shall be given at least 10 days prior to the date set for a hearing. Notice through the register is considered to have been given on the date on which the issue of the register in which the notice first appears is published under s. 35.93 (2).

227.17(2m) (2m) The notice under sub. (1) shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule.

227.17(3) (3) The notice under sub. (1) shall include:

227.17(3)(a) (a) A statement of the date, time and place of the hearing.

227.17(3)(b) (b) A copy of the proposed rule as submitted to the legislative council staff under s. 227.15 (1).

227.17(3)(eg) (eg) Any independent economic impact analysis prepared under s. 227.137 (4m).

227.17(3)(f) (f) If the proposed rule will have an effect on small businesses, as defined under s. 227.114 (1), an initial regulatory flexibility analysis, which shall contain a description of the types of small businesses that will be affected by the rule, a brief description of the proposed reporting, bookkeeping and other procedures required for compliance with the rule and a description of the types of professional skills necessary for compliance with the rule.

227.17(3)(g) (g) Any additional matter required by statute.

227.17(3)(i) (i) The electronic mail address and telephone number of the small business regulatory coordinator and a link to an Internet site that allows a person to review the rule and make comments regarding the rule.

227.17(4) (4) An agency may modify a proposed rule prior to a hearing without providing additional notice under this section if the modification is germane to the subject matter of the proposed rule. In this subsection, an agency’s proposal to delete part of a proposed rule for which notice was given under sub. (1) shall be treated as a germane modification of the proposed rule.

227.17(5) (5) Failure of any person to receive notice of a hearing on proposed rule making is not grounds for invalidating the resulting rule if notice of the hearing was published as provided in sub. (1) (a).

227.17 History History: 1985 a. 182; 1985 a. 332 s. 253; 1987 a. 253; 1995 a. 106; 2003 a. 145; 2005 a. 249; 2007 a. 20; 2011 a. 21; 2013 a. 20, 172; 2017 a. 57.

227.17 Annotation Changes in a proposed rule after notice was published did not so alter the scope of the proposed rule as to require a second hearing. Brown County v. DHSS, 103 Wis. 2d 37, 307 N.W.2d 247 (1981). See also Applegate-Bader Farm, LLC v. DOR, 2020 WI App 7, 390 Wis. 2d 708, 940 N.W.2d 725, 18-1239.

227.17 Annotation Reversed on other grounds. 2021 WI 26, 396 Wis. 2d 69, 955 N.W.2d 793, 18-1239.

227.18 227.18 Conduct of hearings.

227.18(1) (1) An agency shall hold a public hearing at the date, time and place designated in the notice of hearing. The person conducting the hearing shall:

227.18(1)(a) (a) Explain the purpose of the hearing and describe how testimony will be received.

227.18(1)(b) (b) At the beginning of the hearing, present a summary of the factual information on which the proposed rule is based, including any information obtained from an advisory committee, informal conference or consultation.

227.18(1)(c) (c) Afford each interested person or a representative the opportunity to present facts, opinions or arguments in writing, whether or not there is an opportunity to present them orally.

227.18(1)(d) (d) Keep a record of the hearing in a manner the agency considers desirable and feasible.

227.18(2) (2) The person conducting the hearing may:

227.18(2)(a) (a) Limit oral presentations if the hearing would be unduly lengthened by repetitious testimony.

227.18(2)(b) (b) Question or allow others present to question the persons appearing.

227.18(2)(c) (c) Administer an oath or affirmation to any person appearing.

227.18(2)(d) (d) Continue or postpone the hearing to a specified date, time and place.

227.18(3) (3) 

227.18(3)(a) (a) If the agency officer or a quorum of the board or commission responsible for promulgating the proposed rule is not present at the hearing, the procedures in this subsection apply.

227.18(3)(b) (b) At the beginning of the hearing, the person conducting it shall inform those present that any person who presents testimony at the hearing may present his or her argument to the agency officer, board or commission prior to promulgation of the proposed rule if the request to do so is made in writing at the hearing.

227.18(3)(c) (c) If required by the agency officer, board or commission, an argument shall be presented to the agency in writing. If oral arguments are permitted, the agency officer, board or commission may impose reasonable limitations on the length and number of appearances to conserve time and preclude undue repetition.

227.18(3)(d) (d) If a record of the hearing has been made, arguments before the agency officer, board or commission shall be limited to the record of the hearing.

227.18(4) (4) The procedures required by this section do not supersede procedures required by any statute relating to a specific agency or to the rule or class of rules under consideration.

227.18 History History: 1985 a. 182.

227.185 227.185 Approval by governor. 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 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.

227.185 History History: 2011 a. 21; 2017 a. 57.

227.185 Annotation The requirement that agencies receive gubernatorial approval under s. 227.135 (2) prior to drafting a proposed rule, and again under this section before submitting the rule to the legislature, is constitutional as applied to the state superintendent of public instruction and the Department of Public Instruction. Koschkee v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600, 17-2278.

227.185 Annotation Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.

227.19 227.19 Legislative review prior to promulgation.

227.19(1) (1) Statement of purpose; rule-making powers.

227.19(1)(a) (a) Article IV of the constitution of this state vests in the legislature the power to make laws, and thereby to establish agencies and to designate agency functions, budgets and purposes. Article V of the constitution of this state charges the executive with the responsibility to expedite all measures which may be resolved upon by the legislature.

227.19(1)(b) (b) The legislature recognizes the need for efficient administration of public policy. In creating agencies and designating their functions and purposes, the legislature may delegate rule-making authority to these agencies to facilitate administration of legislative policy. The delegation of rule-making authority is intended to eliminate the necessity of establishing every administrative aspect of general public policy by legislation. In so doing, however, the legislature reserves to itself:

227.19(1)(b)1. 1. The right to retract any delegation of rule-making authority.

227.19(1)(b)2. 2. The right to establish any aspect of general policy by legislation, notwithstanding any delegation of rule-making authority.

227.19(1)(b)3. 3. The right and responsibility to designate the method for rule promulgation, review and modification.

227.19(1)(b)4. 4. The right to delay or suspend the implementation of any rule or proposed rule while under review by the legislature.

227.19(2) (2) Notification of legislature. 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 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. The presiding officer of each house of the legislature shall, within 10 working days following the day on which the notice and report are received, direct the appropriate chief clerk to refer the notice and report to one standing committee. 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. Each chief clerk shall enter a similar statement in the journal of his or her house.

227.19(3) (3) Form of report. 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); 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:

227.19(3)(a) (a) A detailed statement explaining the basis and purpose of the proposed rule, including how the proposed rule advances relevant statutory goals or purposes.

227.19(3)(b) (b) A summary of public comments to the proposed rule and the agency’s response to those comments, and an explanation of any modification made in the proposed rule as a result of public comments or testimony received at a public hearing.

227.19(3)(c) (c) A list of the persons who appeared or registered for or against the proposed rule at a public hearing held under s. 227.136 or 227.16.

227.19(3)(cm) (cm) Any changes to the analysis prepared under s. 227.14 (2) or the fiscal estimate prepared under s. 227.14 (4).

227.19(3)(d) (d) A response to the legislative council staff recommendations under s. 227.15 indicating:

227.19(3)(d)1. 1. Acceptance of the recommendations in whole or in part.

227.19(3)(d)2. 2. Rejection of the recommendations in whole or in part.

227.19(3)(d)3. 3. The specific reason for rejecting any recommendation.

227.19(3)(e) (e) Except as provided under sub. (3m), for all proposed rules that will have an effect on small businesses, as defined under s. 227.114 (1), a final regulatory flexibility analysis, which shall contain as much information about the following as the agency can feasibly obtain and analyze with its existing staff and resources:

227.19(3)(e)1. 1. The agency’s reason for including or failing to include in the proposed rule any of the methods specified under s. 227.114 (2) for reducing its impact on small businesses.

227.19(3)(e)2. 2. A summary of issues raised by small businesses during the hearings on the proposed rule, any changes in the proposed rule as a result of alternatives suggested by small businesses and the reasons for rejecting any alternatives suggested by small businesses.

227.19(3)(e)3. 3. The nature of any reports and the estimated cost of their preparation by small businesses that must comply with the rule.

227.19(3)(e)4. 4. The nature and estimated cost of other measures and investments that will be required of small businesses in complying with the rule.

227.19(3)(e)5. 5. The additional cost, if any, to the agency of administering or enforcing a rule which includes any of the methods specified under s. 227.114 (2).

227.19(3)(e)6. 6. The impact on public health, safety and welfare, if any, caused by including in the rule any of the methods specified under s. 227.114 (2).

227.19(3)(f) (f) If an energy impact report regarding the proposed rule was submitted with the report required under sub. (2), an explanation of the changes, if any, that were made in the proposed rule in response to that report.

227.19(3)(g) (g) Any housing impact analysis prepared under s. 227.115 (2) (a) and any revised housing impact analysis prepared under s. 227.115 (2) (b).

227.19(3)(h) (h) A response to any report prepared by the small business regulatory review board under s. 227.14 (2g).

227.19(3m) (3m) Analysis not required. The final regulatory flexibility analysis specified under sub. (3) (e) is not required for any rule if the small business regulatory review board determines that the rule will not have a significant economic impact on a substantial number of small businesses.

227.19(4) (4) Committee review.

227.19(4)(a) (a) Notice of referral. Upon receipt of notice that a proposed rule has been referred to a committee under sub. (2), the chairperson or chairpersons of the committee shall notify, in writing, each committee member of the referral.

227.19(4)(am) (am) Committee meeting. A committee may be convened upon the call of its chairperson or cochairpersons to review a proposed rule. A committee may meet separately or jointly with the other committee to which the notice and report were referred. A committee may hold a public hearing to review a proposed rule.