Rule-making authority is expressly conferred on an agency as follows:
Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.
Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule.
An agency may promulgate rules implementing or interpreting a statute that it will enforce or administer after publication of the statute but prior to the statute's effective date. A rule promulgated under this paragraph may not take effect prior to the effective date of the statute that it implements or interprets.
An agency may not inform a member of the public in writing that a rule is or will be in effect unless the rule has been filed under s. 227.20
or unless the member of the public requests that information.
Under ss. 227.10 (2m) and 227.11 (2) (a), created by 2011 Wis. Act 21
, an agency must have explicit authority to impose license and permit conditions and must have explicit authority for rulemaking. Act 21 makes clear that permit conditions and rulemaking may no longer be premised on implied agency authority. OAG 1-16
Sub. (2) (a) clearly disallows rulemaking based on broad statements of policy or duty. Although sub. (2) (a) only speaks to rulemaking, it follows that an agency is prohibited from conditioning a permit based on broad statements of policy or duty. OAG 1-16
The attorney general applied a 3-step analytical inquiry to determine whether a rule “contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in” a statute, in violation of sub. (2) (a) 3.: 1) examine whether both a rule and a statute contain a “specific standard, requirement, or threshold” governing the same subject matter conduct; 2) compare the two standards, requirements, or thresholds to determine if the rule is “more restrictive” than the statute; 3) if the rule is more restrictive than the statute, evaluate whether the rule is otherwise “explicitly permitted by statute or by a rule,” as provided under sub. (2m). If the rule is more restrictive than the statute, and not otherwise explicitly permitted, the rule may not be enforced or administered. OAG 4-17
Despite its procedurally lawful promulgation in the past, in light of changes to this section and s. 227.10 by 2011 Act 21
, a rule may not be prospectively enforced or administered if it contains a “standard, requirement, or threshold” that is more restrictive than the relevant statute. OAG 4-17
Rule-making authority of certain agencies. 227.111(1)(1)
In this section, “restricted agency” means an affiliated credentialing board, as defined in s. 15.01 (1g)
, a board, as defined in s. 15.01 (1r)
, a commission, as defined in s. 15.01 (2)
, or an examining board, as defined in s. 15.01 (7)
, that has not taken any action under this subchapter with respect to the promulgation of a rule in 10 years or more.
Notwithstanding ss. 227.10
and any other provision authorizing or requiring a restricted agency to promulgate rules, a restricted agency may not take any action with respect to the promulgation of a rule unless a subsequent law specifically authorizes such action.
History: 2017 a. 158
Incorporation of local, comprehensive planning goals.
Each agency, where applicable and consistent with the laws that it administers, is encouraged to design the rules promulgated by the agency to reflect a balance between the mission of the agency and the goals specified in s. 1.13 (2)
History: 1999 a. 9
Rule making; considerations for small business. 227.114(1)(1)
In this section, “small business" means a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
When an agency proposes or revises a rule that may have an effect on small businesses, the agency shall consider each of the following methods for reducing the impact of the rule on small businesses:
The establishment of less stringent compliance or reporting requirements for small businesses.
The establishment of less stringent schedules or deadlines for compliance or reporting requirements for small businesses.
The consolidation or simplification of compliance or reporting requirements for small businesses.
The establishment of performance standards for small businesses to replace design or operational standards required in the rule.
The exemption of small businesses from any or all requirements of the rule.
The agency shall incorporate into the proposed rule any of the methods specified under sub. (2)
which it finds to be feasible, unless doing so would be contrary to the statutory objectives which are the basis for the proposed rule.
In addition to the requirements under s. 227.17
, the agency shall provide an opportunity for small businesses to participate in the rule-making process, using one or more of the following methods:
The inclusion in the notice under s. 227.17
of a statement that the rule may have an impact on small businesses.
The direct notification of any small business that may be affected by the rule.
The conduct of public hearings concerning the impact of the rule on small businesses.
The use of special hearing procedures to reduce the cost or complexity of participation in the rule-making process by small businesses.
When an agency, under s. 227.20 (1)
, files with the legislative reference bureau a rule that is subject to this section, the agency shall include with the rule a summary of the analysis prepared under s. 227.19 (3) (e)
and a summary of the comments of the legislative standing committees, if any. If, under s. 227.19 (3m)
, the rule does not require the analysis under s. 227.19 (3) (e)
, the agency shall include with the rule a statement of the reason for the small business regulatory review board's determination that the rule will not have a significant economic impact on a substantial number of small businesses. The legislative reference bureau shall publish the summaries or the statement in the register with the rule.
A small business may commence an action against an agency for injunctive relief to prevent the imposition of a penalty if the small business is subject to the penalty as the result of any of the following:
The small business acted or failed to act due to the failure by the agency's employee, officer, or agent with regulatory responsibility for that legal requirement to respond to a specific question in a reasonable time.
The small business acted or failed to act in response to inaccurate advice given to the small business by the agency's employee, officer, or agent with regulatory responsibility for that legal requirement.
The small business may commence the action in the circuit court for the county where the property affected is located or, if no property is affected, in the circuit court for the county where the dispute arose.
The circuit court may issue an order enjoining the imposition of the penalty if the court determines that par. (b) 1.
Each agency shall designate at least one employee to serve as the small business regulatory coordinator for the agency, and shall publicize that employee's electronic mail address and telephone number. The small business regulatory coordinator shall act as a contact person for small business regulatory issues for the agency.
Rules that do not affect small businesses directly, including, but not limited to, rules relating to county or municipal administration of state and federal programs.
Review of rules affecting housing. 227.115(1)
In this section, “state housing strategy plan" means the plan developed under s. 16.302
(2) Analysis of rules affecting housing. 227.115(2)(a)(a)
If a proposed rule may increase or decrease, either directly or indirectly, the cost of the development, construction, financing, purchasing, sale, ownership, or availability of housing in this state, the agency promulgating the proposed rule shall prepare a housing impact analysis for the proposed rule before it is submitted to the legislative council staff under s. 227.15
. The agency may request any information from other state agencies, local governments, or individuals or organizations that is reasonably necessary for the agency to prepare the analysis.
On the same day that the agency submits the housing impact analysis to the legislative council staff under s. 227.15 (1)
, the agency shall also submit that analysis to the department of administration, to the governor, and to the chief clerks of each house of the legislature, who shall distribute the analysis to the presiding officers of their respective houses, to the chairpersons of the appropriate standing committees of their respective houses, as designated by those presiding officers, and to the cochairpersons of the joint committee for review of administrative rules. If a proposed rule is modified after the housing impact analysis is submitted under this paragraph so that the housing impact of the proposed rule is significantly changed, the agency shall prepare a revised housing impact analysis for the proposed rule as modified. A revised housing impact analysis shall be prepared and submitted in the same manner as an original housing impact analysis is prepared and submitted.
(3) Findings to be contained in housing impact analysis. 227.115(3)(a)(a)
A housing impact analysis shall contain information about the effect of the proposed rule on housing in this state, including information on the effect of the proposed rule on all of the following:
The policies, strategies and recommendations of the state housing strategy plan.
The cost of developing, constructing, rehabilitating, improving, maintaining, or owning single-family or multifamily dwellings.
The purchase price of new homes or the fair market value of existing homes.
The cost and availability of financing to purchase or develop housing.
The density, location, setback, size, or height of development on a lot, parcel, land division, or subdivision.
A housing impact analysis shall analyze the relative impact of the effects of the proposed rule on low- and moderate-income households.
Except as provided in subd. 2.
, a housing impact analysis shall provide reasonable estimates of the information under pars. (a)
expressed as dollar figures and shall include descriptions of the immediate effect and, if ascertainable, the long-term effect. The agency shall include a brief summary or worksheet of computations used in determining any such dollar figures.
If, after careful consideration, the agency determines that it is not possible to make an estimate expressed as dollar figures as provided in subd. 1.
, the analysis shall instead contain a statement to that effect setting forth the reasons for that determination.
Except as otherwise specified in par. (a)
, a housing impact analysis shall be prepared on the basis of a median-priced single-family residence but may include estimates for larger developments as an analysis of the long-term effect of the proposed rule.
This section does not apply to emergency rules promulgated under s. 227.24
Sub. (2) requires a report on the effect of a proposed rule on housing if the “rule directly or substantially affects the development, construction, cost, or availability of housing in this state. . ." The use of the phrase “directly or substantially" demonstrates that not just any effect will trigger the housing impact report requirement. A housing impact report is not required simply because the subject matter of a proposed rule relates to housing, or because the rule tangentially affects housing in some way. Wisconsin Realtors Association v. Public Service Commission of Wisconsin, 2015 WI 63
, 363 Wis. 2d 430
, 867 N.W.2d 364
The absence of an explicit, on-the-record determination regarding whether a housing impact report is required is not dispositive and does not mean rules were promulgated without compliance with statutory rule-making procedures. Wisconsin Realtors Association v. Public Service Commission of Wisconsin, 2015 WI 63
, 363 Wis. 2d 430
, 867 N.W.2d 364
The above annotated materials cite to the pre-2017 Wisconsin Act 68
version of s. 227.115.
Rules to include time period. 227.116(1g)
In this section, “permit" means any approval of an agency required as a condition of operating a business in this state.
Each proposed rule submitted to the legislative council under s. 227.15
that includes a requirement for a business to obtain a permit shall specify the number of business days, calculated beginning on the day a permit application is received, within which the agency will review and make a determination on a permit application.
If any existing rule does not comply with sub. (1r)
, the agency that promulgated the rule shall submit to the legislative council a proposed revision of the rule that will bring the rule into compliance with sub. (1r)
. The legislative council staff's review of the proposed revision is limited to determining whether or not the agency has complied with this subsection.
(3) Subsections (1r)
do not apply to a rule if the rule, or a law under which the rule was promulgated, effective prior to November 17, 1983, contains a specification of a time period for review and determination on a permit application.
If an agency fails to review and make a determination on a permit application within the time period specified in a rule or law, for each such failure the agency shall prepare a report and submit it to the department of safety and professional services within 5 business days of the last day of the time period specified, setting forth all of the following:
The name of the person who submitted the permit application and the business activity for which the permit is required.
Why the review and determination were not completed within the specified time period and a specification of the revised time period within which the review and determination will be completed.
How the agency intends to avoid such failures in the future.
If an agency fails to review and make a determination on a permit application within the time period specified in a rule or law, upon completion of the review and determination for that application, the agency shall notify the department of safety and professional services.
An agency's failure to review and make a determination on a permit application within the time period specified in a rule or law does not relieve any person from the obligation to secure a required permit nor affect in any way the agency's authority to interpret the requirements of or grant or deny permits.
If a court finds that an agency failed to review and make a determination on a permit application within the time period specified in a rule or law, that finding shall not constitute grounds for declaring the agency's determination invalid.
Review of rules impacting energy availability. 227.117(1)(1)
The public service commission shall prepare an energy impact report on any proposed rule if, not later than 30 days after the public hearing under s. 227.18
, the chairperson or ranking minority member of a standing committee, the speaker of the assembly, or the presiding officer of the senate requests in writing that the commission determine the rule's impact on the cost or reliability of electricity generation, transmission, or distribution or of fuels used in generating electricity. The energy impact report shall include an evaluation and related findings and conclusions on the probable impact of the proposed rule on the cost or reliability of electricity generation, transmission, or distribution or of fuels used in generating electricity.
Within 30 days after the written request is submitted to the public service commission, the commission shall submit a copy of any energy impact report prepared under sub. (1)
to the agency that proposed the rule that resulted in the report.
An agency that receives an energy impact report under sub. (2)
, shall consider the energy impact report before submitting the notification and report to the legislature under s. 227.19 (2)
History: 2003 a. 277