The 2003 Jobs Creation Act: Changing Wisconsin's Regulatory Climate. Fassbender & Kent. Wis. Law. Sept. 2004.
Legislative council staff. 227.15(1)
Submittal to legislative council staff.
Prior to a public hearing on a proposed rule or, if no public hearing is required, prior to notice under s. 227.19
, an agency shall submit the proposed rule to the legislative council staff for review. The proposed rule shall be in the form required under s. 227.14 (1)
, and shall include the material required under s. 227.14 (2)
, and (4)
, the economic impact analysis required under s. 227.137 (2)
, and any revised economic impact analysis required under s. 227.137 (4)
. An agency may not hold a public hearing on a proposed rule or give notice under s. 227.19
until after it has received a written report of the legislative council staff review of the proposed rule or until after the initial review period of 20 working days under sub. (2) (intro.)
, whichever comes first. An agency may give notice of a public hearing prior to receipt of the legislative council staff report. This subsection does not apply to rules promulgated under s. 227.24
(1m) Internet access to proposed rule.
The legislative council staff shall create and maintain an Internet site that includes a copy of or link to each proposed rule received under sub. (1)
in a format that allows searching using keywords. Each agency shall provide the legislative council staff with the proposed rules and other information needed to comply with this subsection in the format required by the legislative council staff. The Internet site shall identify or provide a link to a site that identifies proposed rules affecting small businesses, as defined in s. 227.114 (1)
. The Internet site shall also include or provide a link to all of the following:
The electronic mail address and telephone number of an agency contact person for each proposed rule.
The written report of the legislative council staff review of the proposed rule prepared under sub. (2)
and any agency comments regarding that report.
The time, date, and place of any public hearing specified in the notice in s. 227.17
as soon as that notice is submitted to the legislative reference bureau under s. 227.17 (1) (a)
The place where comments on the proposed rule should be submitted and the deadline for submitting those comments.
(2) Role of legislative council staff.
The legislative council staff shall, within 20 working days following receipt of a proposed rule, review the proposed rule in accordance with this subsection. With the consent of the director of the legislative council staff, the review period may be extended for an additional 20 working days. The legislative council staff shall act as a clearinghouse for rule drafting and cooperate with the agency and the legislative reference bureau to:
Review the statutory authority under which the agency intends to promulgate the proposed rule.
Ensure that the promulgation procedures required by this chapter are followed.
Review proposed rules for form, style and placement in the code.
Review proposed rules to avoid conflict with or duplication of existing rules.
Review proposed rules for adequate references to related statutes, rules and forms.
Review proposed rules for clarity, grammar, punctuation and use of plain language.
Review proposed rules to determine potential conflicts and to make comparisons with related federal statutes and regulations.
Streamline and simplify the rule-making process.
(3) Assistance to committees.
The legislative council staff shall work with and assist the appropriate committees of the legislature during the rule-making process. The legislative council staff may include in its report recommendations concerning proposed rules which the agency shall submit with the notice required under s. 227.19 (2)
(4) Notice of changes in rule-making authority.
Whenever the rule-making authority of an agency is eliminated or significantly changed by the repeal, amendment or creation of a statute, by the interpretive decision of a court of competent jurisdiction or for any other reason, the legislative council staff shall notify the joint committee for review of administrative rules and the appropriate committees of each house of the legislature as determined by the presiding officer of each house. This subsection applies whether or not the rules of the agency are under review by the legislative council staff at the time of the change in rule-making authority.
(5) Annual report.
The legislative council staff shall submit an annual report to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2)
, and to the governor summarizing any action taken and making recommendations to streamline the rule-making process and eliminate obsolete, duplicative and conflicting rules.
(6) Public liaison.
The legislative council staff shall assist the public in resolving problems related to rules. The assistance shall include but is not limited to providing information, identifying agency personnel who may be contacted in relation to rule-making functions, describing the location where a copy of a rule, proposed rule or form is available and encouraging and assisting participation in the rule-making process.
(7) Rules procedures manual.
The legislative council staff and the legislative reference bureau shall prepare a manual to provide agencies with information on drafting, promulgation and legislative review of rules.
When hearings required. 227.16(1)
Except as provided under sub. (2)
, all rule making by an agency shall be preceded by notice and public hearing as provided in ss. 227.17
(2) Subsection (1)
does not apply if any of the following conditions exist:
The proposed rule brings an existing rule into conformity with a statute that has been changed or enacted or with a controlling judicial decision.
The proposed rule is being promulgated at the direction of the joint committee for review of administrative rules under s. 227.26 (2) (b)
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:
Twenty-five natural persons who will be affected by the proposed rule.
A municipality that will be affected by the proposed rule.
An association which is representative of a farm, labor, business or professional group that will be affected by the proposed rule.
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
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.
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
For the purpose of soliciting public comment, an agency may hold a hearing on the general subject matter of possible or anticipated rules before preparing a proposed rule in draft form. A hearing held under this subsection does not satisfy the requirement of sub. (1)
with respect to the promulgation of a specific proposed rule.
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
Notice of hearing. 227.17(1)(1)
If a hearing is required, the agency shall:
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.
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.
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)
Take any action it considers necessary to provide notice to other interested persons.
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)
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.
A statement of the date, time and place of the hearing.
A copy of the proposed rule as submitted to the legislative council staff under s. 227.15 (1)
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.
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.
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.
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)
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
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:
Explain the purpose of the hearing and describe how testimony will be received.
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.
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.
Keep a record of the hearing in a manner the agency considers desirable and feasible.
The person conducting the hearing may:
Limit oral presentations if the hearing would be unduly lengthened by repetitious testimony.
Question or allow others present to question the persons appearing.
Administer an oath or affirmation to any person appearing.
Continue or postpone the hearing to a specified date, time and place.
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.
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.
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.
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.
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.
History: 1985 a. 182
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.
History: 2011 a. 21
In Coyne v. Walker
, 2016 WI 38
, the Supreme Court held that provisions of 2011 Wisconsin Act 21
that give to the Governor, and in limited cases, the Secretary of Administration, the power to intervene in the process of drafting and promulgating administrative rules are unconstitutional as applied to the Superintendent of Public Instruction.
Changing the Rules on Rulemaking, Sklansky, Wis. Law. August 2011.
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.
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:
The right to retract any delegation of rule-making authority.