ADMINISTRATIVE RULES AND
GUIDANCE DOCUMENTS
227.10
227.10
Statements of policy and interpretations of law; discrimination prohibited. 227.10(1)(1)
Each agency shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute. A statement of policy or an interpretation of a statute made in the decision of a contested case, in a private letter ruling under s.
73.035 or in an agency decision upon or disposition of a particular matter as applied to a specific set of facts does not render it a rule or constitute specific adoption of a rule and is not required to be promulgated as a rule.
227.10(2)
(2) No agency may promulgate a rule which conflicts with state law.
227.10(2g)
(2g) No agency may seek deference in any proceeding based on the agency's interpretation of any law.
227.10(2m)
(2m) No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter, except as provided in s.
186.118 (2) (c) and
(3) (b) 3. The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter.
227.10(2p)
(2p) No agency may promulgate a rule or take any other action that requires one or more lots to be merged with another lot, for any purpose, without the consent of the owners of the lots that are to be merged.
227.10(3)(a)(a) No rule, either by its terms or in its application, may discriminate for or against any person by reason of sex, race, creed, color, sexual orientation, national origin or ancestry.
227.10(3)(b)
(b) A rule may discriminate for or against a person by reason of physical condition or developmental disability as defined in s.
51.01 (5) only if it is strictly necessary to a function of the agency and is supported by data demonstrating that necessity.
227.10(3)(c)
(c) Each person affected by a rule is entitled to the same benefits and is subject to the same obligations as any other person under the same or similar circumstances.
227.10(3)(e)
(e) Nothing in this subsection prohibits the director of the bureau of merit recruitment and selection in the department of administration from promulgating rules relating to expanded certification under s.
230.25 (1n).
227.10 Annotation
Guidelines promulgated outside the context of one particular contested case do not qualify for exception to the requirement that all rules must be filed under s. 227.023 [now s. 227.20]. Here, failure to file the guideline as a rule did not deprive the Department of Industry, Labor and Human Relations of the authority to decide contested cases dealing with pregnancy leaves under the sex discrimination statute. Wisconsin Telephone Co. v. DILHR,
68 Wis. 2d 345,
228 N.W.2d 649 (1975).
227.10 Annotation
When a party files an application for a license with an administrative agency and the latter points to some announced agency policy of general application as a reason for rejecting the application, such announced policy constitutes a rule, the validity of which the applicant is entitled to have tested in a declaratory action. Schoolway Transportation Co. v. Division of Motor Vehicles,
72 Wis. 2d 223,
240 N.W.2d 403 (1976).
227.10 Annotation
When the Department of Transportation (DOT) revised its application of a statute to bring DOT's practices into conformity with the plain meaning of the statute, DOT followed a course it was obliged to pursue when confronted with its error. This is not a regulation, standard, statement of policy, or general order. Neither is it a statement of general policy or interpretation of a statute. Therefore, there was no requirement that DOT comply with the filing procedures mandated in connection with promulgation of administrative rules. Schoolway Transportation Co. v. Division of Motor Vehicles,
72 Wis. 2d 223,
240 N.W.2d 403 (1976).
227.10 Annotation
The Department of Transportation (DOT) engaged in administrative rule making when it changed its interpretation of a statute whose terms did not specifically require the interpretation, the interpretation was administered as law, and DOT relied upon the interpretation to deny the issuance of a license in a form in direct contrast to the manner in which the statute was previously administered by DOT. Those who are or will be affected generally by such an interpretation should have the opportunity to be informed as to the manner in which the terms of the statute regulating their operations will be applied. This is accomplished by the issuance and filing procedures under this chapter, and the rule is invalid until such measures are taken. Schoolway Transportation Co. v. Division of Motor Vehicles,
72 Wis. 2d 223,
240 N.W.2d 403 (1976).
227.10 Annotation
The legislature may constitutionally prescribe a criminal penalty for the violation of an administrative rule. State v. Courtney,
74 Wis. 2d 705,
247 N.W.2d 714 (1976).
227.10 Annotation
A memorandum announcing general policies and specific criteria governing all decisions on good time for mandatory release parole violations was a “rule" and should have been promulgated properly. State ex rel. Clifton v. Young,
133 Wis. 2d 193,
394 N.W.2d 769 (Ct. App. 1986).
227.10 Annotation
An agency may use policies and guidelines to assist in the implementation of administrative rules provided they are consistent with state and federal legislation. Tannler v. Department of Health & Social Services,
211 Wis. 2d 179,
564 N.W.2d 735 (1997).
227.10 Annotation
An administrative agency cannot regulate the activities of another agency or promulgate rules to bind another agency without express statutory authority. George v. Schwarz,
2001 WI App 72,
242 Wis. 2d 450,
626 N.W.2d 57,
00-2711.
227.10 Annotation
When an agency changes its interpretation of an ambiguous statute, the agency is engaging in rulemaking. The rulemaking exemption described in
Schoolway Transportation Co.,
72 Wis. 2d 223 (1976), does not apply when the agency fails to identify a plain and unambiguous statutory command necessitating the agency's new interpretation. Lamar Central Outdoor, LLC v. Division of Hearings & Appeals,
2019 WI 109,
389 Wis. 2d 486,
936 N.W.2d 573,
17-1823.
227.10 Annotation
An agency may rely upon a grant of authority that is explicit but broad when undertaking agency action, and such an explicit but broad grant of authority complies with sub. (2m). Clean Wisconsin, Inc. v. DNR,
2021 WI 71,
398 Wis. 2d 386,
961 N.W.2d 346,
16-1688.
227.10 Annotation
Sub. (2m) targets, in a general sense, only the distinction between explicit and implicit agency authority. It requires courts to strictly construe an agency's authorizing statute as granting the agency no implicit authority. Sub. (2m) does not, however, strip an agency of the legislatively granted explicit authority it already has. Nor does it negate a more targeted “directive from the legislature” to “liberally construe” the specific statutes that expressly confer an agency's authority. Accordingly, for purposes of sub. (2m), if the legislature clearly expresses in a statute's text that an agency can undertake certain actions, the breadth of the resulting authority will not defeat the legislature's clear expression. Clean Wisconsin, Inc. v. DNR,
2021 WI 72,
398 Wis. 2d 433,
961 N.W.2d 611,
18-0059.
227.10 AnnotationNothing in the language of
2011 Wis. Act 21 alters existing, properly promulgated rules. Under sub. (2m), agencies may continue to implement and enforce existing rules, including standards therein, provided the rule was “promulgated in accordance with” the rulemaking procedures in place at the time the rule was adopted.
OAG 4-20.
227.10 Annotation
Making “Explicit Authority" Explicit: Deciphering Wis. Act 21's Prescriptions for Agency Rulemaking Authority. Koschnick. 2019 WLR 993.
227.11
227.11
Agency rule-making authority. 227.11(1)(1)
Except as expressly provided, this chapter does not confer rule-making authority upon or augment the rule-making authority of any agency.
227.11(2)
(2) Rule-making authority is expressly conferred on an agency as follows:
227.11(2)(a)
(a) 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:
227.11(2)(a)1.
1. 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.
227.11(2)(a)2.
2. 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.
227.11(2)(a)3.
3. 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.
227.11(2)(b)
(b) 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.
227.11(2)(c)
(c) 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.
227.11(2)(d)
(d) 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.
227.11(2)(e)
(e) 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.
227.11(3)(a)(a) A plan that is submitted to the federal government for the purpose of complying with a requirement of federal law does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. No agency may agree to promulgate a rule as a component of a compliance plan unless the agency has explicit statutory authority to promulgate the rule at the time the compliance plan is submitted.
227.11(3)(b)
(b) A settlement agreement, consent decree, or court order does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. No agency may agree to promulgate a rule as a term in any settlement agreement, consent decree, or stipulated order of a court unless the agency has explicit statutory authority to promulgate the rule at the time the settlement agreement, consent decree, or stipulated order of a court is executed.
227.11 Annotation
To expressly authorize a rule, the enabling statute need not spell out every detail of the rule. If it did, no rule would be necessary. Accordingly, whether the exact words used in an administrative rule appear in the statute is not the question. This principle has been characterized in the case law as the “elemental approach." Under the elemental approach, the reviewing court should identify the elements of the enabling statute and match the rule against those elements. If the rule matches the statutory elements, then the statute expressly authorizes the rule. Wisconsin Ass'n of State Prosecutors v. WERC,
2018 WI 17,
380 Wis. 2d 1,
907 N.W.2d 425,
15-2224.
227.11 Annotation
When administrative agencies promulgate rules, they are exercising legislative power that the legislature has chosen to delegate to them by statute. Stated otherwise, agencies have no inherent constitutional authority to make rules, and their rule-making powers can be repealed by the legislature. It follows that the legislature may place limitations and conditions on an agency's exercise of rulemaking authority, including establishing the procedures by which agencies may promulgate rules. Koschkee v. Taylor,
2019 WI 76,
387 Wis. 2d 552,
929 N.W.2d 600,
17-2278.
227.11 Annotation
Rulemaking is a legislative power that does not fall within the state superintendent of public instruction's supervisory constitutional authority under
article X, section 1, of the Wisconsin Constitution. Rulemaking is a legislative delegation to the state superintendent; therefore, it may be limited or taken away, as the legislature chooses. Koschkee v. Taylor,
2019 WI 76,
387 Wis. 2d 552,
929 N.W.2d 600,
17-2278.
227.11 Annotation
Sub. (2) (a) 2. does not alter explicit grants of rulemaking authority, regardless of whether the rulemaking provision in which the authority is granted could be characterized as broad or “general.”
OAG 4-20.
227.11 Annotation
The plain language of sub. (2) (a) 3. does not alter explicit grants of rulemaking authority to prescribe standards. The fact that the legislature mandates a specific standard in one statute does not, in itself, alter the agency's ability to promulgate, enforce, or administer a different standard enacted pursuant to a second statutory source of rulemaking authority. This holds true even when the second standard could be characterized as “more restrictive” than the first.
OAG 4-20.
227.11 Annotation
Making “Explicit Authority" Explicit: Deciphering Wis. Act 21's Prescriptions for Agency Rulemaking Authority. Koschnick. 2019 WLR 993.
227.111
227.111
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.
227.111(2)
(2) Notwithstanding ss.
227.10 and
227.11 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.
227.111 History
History: 2017 a. 158.
227.112
227.112
Guidance documents. 227.112(1)(a)
(a) Before adopting a guidance document, an agency shall submit to the legislative reference bureau the proposed guidance document with a notice of a public comment period on the proposed guidance document under par.
(b), in a format approved by the legislative reference bureau, for publication in the register. The notice shall specify the place where comments should be submitted and the deadline for submitting those comments.
227.112(1)(b)
(b) The agency shall provide for a period for public comment on a proposed guidance document submitted under par.
(a), during which any person may submit written comments to the agency with respect to the proposed guidance document. Except as provided in par.
(c), the period for public comment shall end no sooner than the 21st day after the date on which the proposed guidance document is published in the register under s.
35.93 (2) (b) 3. im. The agency may not adopt the proposed guidance document until the comment period has concluded and the agency has complied with par.
(d).
227.112(1)(c)
(c) An agency may hold a public comment period shorter than 21 days with the approval of the governor.
227.112(1)(d)
(d) An agency shall retain all written comments submitted during the public comment period under par.
(b) and shall consider those comments in determining whether to adopt the guidance document as originally proposed, modify the proposed guidance document, or take any other action.
227.112(2)
(2) An agency shall post each guidance document that the agency has adopted on the agency's Internet site and shall permit continuing public comment on the guidance document. The agency shall ensure that each guidance document that the agency has adopted remains on the agency's Internet site as provided in this subsection until the guidance document is no longer in effect, is no longer valid, or is superseded or until the agency otherwise rescinds its adoption of the guidance document.
227.112(3)
(3) A guidance document does not have the force of law and does not provide the authority for implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license. An agency that proposes to rely on a guidance document to the detriment of a person in any proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document. An agency may not use a guidance document to foreclose consideration of any issue raised in the guidance document.
227.112(4)
(4) If an agency proposes to act in any proceeding at variance with a position expressed in a guidance document, it shall provide a reasonable explanation for the variance. If an affected person in any proceeding may have relied reasonably on the agency's position, the explanation must include a reasonable justification for the agency's conclusion that the need for the variance outweighs the affected person's reliance interest.
227.112(5)
(5) Persons that qualify under s.
227.12 to petition an agency to promulgate a rule may, as provided in s.
227.12, petition an agency to promulgate a rule in place of a guidance document.
227.112(6)
(6) Any guidance document shall be signed by the secretary or head of the agency below the following certification: “I have reviewed this guidance document or proposed guidance document and I certify that it complies with sections 227.10 and 227.11 of the Wisconsin Statutes. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is not explicitly required or explicitly permitted by a statute or a rule that has been lawfully promulgated. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is more restrictive than a standard, requirement, or threshold contained in the Wisconsin Statutes.”
227.112(7)(a)(a) This section does not apply to guidance documents adopted before July 1, 2019, but on that date any guidance document that has not been adopted in accordance with sub.
(1) or that does not contain the certification required under sub.
(6) shall be considered rescinded.
227.112(7)(b)
(b) This section does not apply to guidance documents or proposed guidance documents of the Board of Regents of the University of Wisconsin System, the Technical College System Board, or the department of employee trust funds.
227.112(8)
(8) The legislative council staff shall provide agencies with assistance in determining whether documents and communications are guidance documents that are subject to the requirements under this section.
227.112 History
History: 2017 a. 369.
227.112 Note
NOTE: In
Service Employees International Union (SEIU), Local 1 v. Vos,
2020 WI 67, the Wisconsin Supreme Court held that this section is facially unconstitutional.
227.112 Annotation
The legislature may enact the laws the executive is duty-bound to execute, but it may not control his knowledge or intentions about those laws. Nor may it mute or modulate the communication of his knowledge or intentions to the public. Because there was no set of facts pursuant to which this section and s. 227.05, to the extent it applies to guidance documents, would not impermissibly interfere with the executive's exercise of his core constitutional power, they were in that respect facially unconstitutional. Service Employees International Union (SEIU), Local 1 v. Vos,
2020 WI 67,
393 Wis. 2d 38,
946 N.W.2d 35,
19-0614.
227.113
227.113
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).
227.113 History
History: 1999 a. 9.
227.114
227.114
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.
227.114(2)
(2) 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:
227.114(2)(a)
(a) The establishment of less stringent compliance or reporting requirements for small businesses.
227.114(2)(b)
(b) The establishment of less stringent schedules or deadlines for compliance or reporting requirements for small businesses.
227.114(2)(c)
(c) The consolidation or simplification of compliance or reporting requirements for small businesses.
227.114(2)(d)
(d) The establishment of performance standards for small businesses to replace design or operational standards required in the rule.
227.114(2)(e)
(e) The exemption of small businesses from any or all requirements of the rule.
227.114(3)
(3) 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.
227.114(4)
(4) 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:
227.114(4)(a)
(a) The inclusion in the notice under s.
227.17 of a statement that the rule may have an impact on small businesses.
227.114(4)(b)
(b) The direct notification of any small business that may be affected by the rule.
227.114(4)(c)
(c) The conduct of public hearings concerning the impact of the rule on small businesses.
227.114(4)(d)
(d) The use of special hearing procedures to reduce the cost or complexity of participation in the rule-making process by small businesses.
227.114(6)
(6) 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.
227.114(6m)(b)
(b) 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:
227.114(6m)(b)1.
1. 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.
227.114(6m)(b)2.
2. 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.
227.114(6m)(c)
(c) 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.
227.114(6m)(d)
(d) The circuit court may issue an order enjoining the imposition of the penalty if the court determines that par.
(b) 1. or
2. applies.
227.114(7m)
(7m) 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.
227.114(8)(b)
(b) 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.
227.115
227.115
Review of rules affecting housing. 227.115(1)(1)
Definition. In this section, “state housing strategy plan" means the plan developed under s.
16.302.
227.115(2)
(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.
227.115(2)(b)
(b) 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.
227.115(3)
(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:
227.115(3)(a)1.
1. The policies, strategies and recommendations of the state housing strategy plan.
227.115(3)(a)2.
2. The cost of developing, constructing, rehabilitating, improving, maintaining, or owning single-family or multifamily dwellings.
227.115(3)(a)3.
3. The purchase price of new homes or the fair market value of existing homes.
227.115(3)(a)4.
4. The cost and availability of financing to purchase or develop housing.
227.115(3)(a)6.
6. The density, location, setback, size, or height of development on a lot, parcel, land division, or subdivision.
227.115(3)(b)
(b) A housing impact analysis shall analyze the relative impact of the effects of the proposed rule on low- and moderate-income households.
227.115(3)(c)1.1. Except as provided in subd.
2., a housing impact analysis shall provide reasonable estimates of the information under pars.
(a) and
(b) 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.
227.115(3)(c)2.
2. 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.
227.115(3)(d)
(d) 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.
227.115(4)
(4) Applicability. This section does not apply to emergency rules promulgated under s.
227.24.
227.115 Annotation
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 Ass'n v. PSC,
2015 WI 63,
363 Wis. 2d 430,
867 N.W.2d 364,
13-1407.
227.115 Annotation
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 Ass'n v. PSC,
2015 WI 63,
363 Wis. 2d 430,
867 N.W.2d 364,
13-1407.
227.115 Note
NOTE: The above annotated materials cite to the pre-
2017 Wisconsin Act 68 version of s. 227.115.
227.116
227.116
Rules to include time period. 227.116(1g)(1g)
In this section, “permit" means any approval of an agency required as a condition of operating a business in this state.
227.116(1r)
(1r) Each proposed rule submitted to the legislative council staff 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.
227.116(2)
(2) If any existing rule does not comply with sub.
(1r), the agency that promulgated the rule shall submit to the legislative council staff 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.
227.116(3)
(3) Subsections
(1r) and
(2) 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.
227.116(4)
(4) 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:
227.116(4)(a)
(a) The name of the person who submitted the permit application and the business activity for which the permit is required.
227.116(4)(b)
(b) 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.
227.116(4)(c)
(c) How the agency intends to avoid such failures in the future.
227.116(5)
(5) 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.
227.116(6)(a)(a) 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.
227.116(6)(b)
(b) 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.
227.117
227.117
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.
227.117(2)
(2) 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.
227.117(3)
(3) 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) and
(3).
227.117 History
History: 2003 a. 277.
227.12
227.12
Petition for rules. 227.12(1)(1)
Unless the right to petition for a rule is restricted by statute to a designated group or unless the form of procedure for a petition is otherwise prescribed by statute, a municipality, an association which is representative of a farm, labor, business or professional group, or any 5 or more persons having an interest in a rule may petition an agency requesting it to promulgate a rule.
227.12(2)
(2) A petition shall state clearly and concisely:
227.12(2)(a)
(a) The substance or nature of the rule making requested.
227.12(2)(b)
(b) The reason for the request and the petitioners' interest in the requested rule.
227.12(2)(c)
(c) A reference to the agency's authority to promulgate the requested rule.
227.12(3)
(3) Except as provided in sub.
(4), within a reasonable period of time after the receipt of a petition under this section, an agency shall either deny the petition in writing or proceed with the requested rule making. If the agency denies the petition, it shall promptly notify the petitioner of the denial, including a brief statement of the reason for the denial. If the agency proceeds with the requested rule making, it shall follow the procedures prescribed in this subchapter.
227.12(4)
(4) If a petition to the department of revenue establishes that the department has established a standard by which it is construing a state tax statute, but has not promulgated a rule to adopt the standard or published the standard in a manner that is available to the public, the department shall, as provided under s.
227.135, submit a statement of the scope of the proposed rule to the department of administration no later than 90 days after receiving the petition. No later than 270 days after the statement is approved by the governor, the department shall submit the proposed rule in final draft form to the governor for the governor's approval, as provided under s.
227.185. At the department's request, the governor or the department of administration may, at any time prior to the expiration of any deadline specified in this subsection, extend the time for submitting the statement or proposed rule in draft form for any period not to exceed 60 days. The governor or the department of administration may grant more than one extension under this subsection, but the total period for all such extensions may not exceed 120 days. The rule need not adhere to the standard established by the department, but shall address the same circumstances as the standard addresses. If the department fails to comply with this subsection, any of the petitioners may commence an action in circuit court to compel the department's compliance. If an action is commenced under this subsection, the court may compel the department to provide information to the court related to the degree to which the department is enforcing the standard, except that the information provided by the department shall not disclose the identity of any person who is not a party to the action.
227.13
227.13
Advisory committees and informal consultations. An agency may use informal conferences and consultations to obtain the viewpoint and advice of interested persons with respect to contemplated rule making. An agency may also appoint a committee of experts, interested persons or representatives of the public to advise it with respect to any contemplated rule making. Such a committee shall have advisory powers only. Whenever an agency appoints a committee under this section, the agency shall submit a list of the members of the committee to the joint committee for review of administrative rules.
227.13 History
History: 1985 a. 182;
2017 a. 369.
227.135
227.135
Statements of scope of proposed rules. 227.135(1)(1)
An agency shall prepare a statement of the scope of any rule that it plans to promulgate. The statement shall include all of the following:
227.135(1)(b)
(b) A description of existing policies relevant to the rule and of new policies proposed to be included in the rule and an analysis of policy alternatives.
227.135(1)(d)
(d) Estimates of the amount of time that state employees will spend to develop the rule and of other resources necessary to develop the rule.
227.135(1)(e)
(e) A description of all of the entities that may be affected by the rule.
227.135(1)(f)
(f) A summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
227.135(2)
(2) An agency that has prepared a statement of the scope of the proposed rule shall present the statement to the department of administration, which shall make a determination as to whether the agency has the explicit authority to promulgate the rule as proposed in the statement of scope and shall report the statement of scope and its determination to the governor who, in his or her discretion, may approve or reject the statement of scope. The agency may not send the statement to the legislative reference bureau for publication under sub.
(3) until the governor issues a written notice of approval of the statement. The agency shall also present the statement to the individual or body with policy-making powers over the subject matter of the proposed rule for approval. The individual or body with policy-making powers may not approve the statement until at least 10 days after publication of the statement under sub.
(3) and, if a preliminary public hearing and comment period are held by the agency under s.
227.136, until the individual or body has received and reviewed any public comments and feedback received from the agency under s.
227.136 (5). No state employee or official may perform any activity in connection with the drafting of a proposed rule, except for an activity necessary to prepare the statement of the scope of the proposed rule until the governor and the individual or body with policy-making powers over the subject matter of the proposed rule approve the statement. This subsection does not prohibit an agency from performing an activity necessary to prepare a petition and proposed rule for submission under s.
227.26 (4).
227.135(3)
(3) If the governor approves a statement of the scope of a proposed rule under sub.
(2), the agency shall send an electronic copy of the statement to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register. On the same day that the agency sends the statement to the legislative reference bureau, the agency shall send a copy of the statement to the secretary of administration and to the chief clerks of each house of the legislature, who shall distribute the statement to the cochairpersons of the joint committee for review of administrative rules. The agency shall include with any statement of scope sent to the legislative reference bureau the date of the governor's approval of the statement of scope. The legislative reference bureau shall assign a discrete identifying number to each statement of scope and shall include that number and the date of the governor's approval in the publication of the statement of scope in the register.
227.135(4)
(4) If at any time after a statement of the scope of a proposed rule is approved under sub.
(2) the agency changes the scope of the proposed rule in any meaningful or measurable way, including changing the scope of the proposed rule so as to include in the scope any activity, business, material, or product that is not specifically included in the original scope of the proposed rule, the agency shall prepare and obtain approval of a revised statement of the scope of the proposed rule in the same manner as the original statement was prepared and approved under subs.
(1) and
(2). No state employee or official may perform any activity in connection with the drafting of the proposed rule except for an activity necessary to prepare the revised statement of the scope of the proposed rule until the revised statement is so approved.
227.135(5)
(5) A statement of scope shall expire on the date that is 30 months after the date on which it is published in the register. After a statement of scope expires, an agency may not submit a proposed rule based upon that statement of scope to the legislature for review under s.
227.19 (2), and any such rule that has not been submitted to the legislature for review before that date shall be considered withdrawn on that date as provided in s.
227.14 (6) (c) 1. a. For purposes of this subsection, a revised statement of scope prepared under sub.
(4) shall expire on the date that is 30 months after the date on which the revised statement is published in the register.
227.135 Annotation
The requirement that agencies receive gubernatorial approval under sub. (2) prior to drafting a proposed rule, and again under s. 227.185 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.
227.135 Annotation
Under sub. (4), there is a change to the scope of a proposed rule only when the agency changes a draft rule under consideration in a way that meaningfully or measurably departs from the topics described in the previously authorized scope statement. There is no need for a revised scope statement if all of the topics covered in both the initial and changed versions of the draft rule fit within the range of topics for potential rules described in the previously authorized scope statement. Applegate-Bader Farm, LLC v. DOR,
2020 WI App 7,
390 Wis. 2d 708,
940 N.W.2d 725,
18-1239.
227.135 Annotation
Practice Tips: Finding Administrative Intent in the Wisconsin Administrative Register. Sefarbi. Wis. Law. Apr. 2003.
227.135 Annotation
Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.
227.136
227.136
Preliminary public hearing and comment period. 227.136(1)(1)
Within 10 days after publication of a statement of the scope of a proposed rule under s.
227.135 (3), either cochairperson of the joint committee for the review of administrative rules may submit a written directive to the agency that prepared the statement for the agency to hold a preliminary public hearing and comment period on the statement of scope as provided in this section.
227.136(2)
(2) If the agency is directed to hold a preliminary public hearing and comment period on a statement of scope as provided in sub.
(1) or if the agency otherwise opts to do so on its own initiative, the agency shall submit to the legislative reference bureau, in a format approved by the legislative reference bureau, a notice of a preliminary public hearing and comment period to allow for public comment and feedback on the statement of scope. The agency may also take any other action it considers necessary to provide notice of the preliminary public hearing and comment period to other interested persons. The notice shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule and shall include all of the following:
227.136(2)(a)
(a) A statement of the date, time, and place of the preliminary public hearing.
227.136(2)(b)
(b) The place where comments on the statement of scope should be submitted and the deadline for submitting those comments.
227.136(3)
(3) The agency shall hold the preliminary public hearing and comment period in accordance with the notice required under sub.
(2), but may not hold the hearing sooner than the 3rd day after publication of the notice in the register.
227.136(4)
(4) The agency shall conduct a hearing under this section in accordance with s.
227.18.
227.136(5)
(5) The agency shall report all public comments and feedback on the statement of scope of the proposed rule that the agency receives at the preliminary public hearing and comment period to the individual or body with policy-making powers over the subject matter of the proposed rule.
227.136(6)
(6) Failure of any person to receive notice of a preliminary public hearing as provided in this section is not grounds for invalidating any resulting rule if notice of the hearing was published in the register in accordance with s.
35.93 (2) (b) 3. bm. 227.136(7)
(7) 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 statement of scope for a proposed rule. A hearing held under this subsection does not relieve the agency from its obligation to comply with a directive under sub.
(1) or the requirement to hold a hearing under s.
227.16.
227.136 History
History: 2017 a. 57 ss.
5,
17.
227.137
227.137
Economic impact analyses of proposed rules. 227.137(2)(2)
An agency shall prepare an economic impact analysis for a proposed rule before submitting the proposed rule to the legislative council staff under s.
227.15.
227.137(3)
(3) An economic impact analysis of a proposed rule shall contain information on the economic effect of the proposed rule on specific businesses, business sectors, public utility ratepayers, local governmental units, and the state's economy as a whole. The agency or person preparing the analysis shall solicit information and advice from businesses, associations representing businesses, local governmental units, and individuals that may be affected by the proposed rule. The agency or person shall prepare the economic impact analysis in coordination with local governmental units that may be affected by the proposed rule. The agency or person may also request information that is reasonably necessary for the preparation of an economic impact analysis from other businesses, associations, local governmental units, and individuals and from other agencies. The economic impact analysis shall include all of the following:
227.137(3)(a)
(a) An analysis and quantification of the policy problem that the proposed rule is intending to address, including comparisons with the approaches used by the federal government and by Illinois, Iowa, Michigan, and Minnesota to address that policy problem. If the approach chosen by the agency to address that policy problem is different from those approaches, an economic impact analysis prepared by an agency shall include a statement as to why the agency chose a different approach.
227.137(3)(b)
(b) An analysis and detailed quantification of the economic impact of the proposed rule, including the implementation and compliance costs that are reasonably expected to be incurred by or passed along to the businesses, local governmental units, and individuals that may be affected by the proposed rule, specifically including all of the following:
227.137(3)(b)1.
1. An estimate of the total implementation and compliance costs that are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals as a result of the proposed rule, expressed as a single dollar figure. With respect to an independent economic impact analysis prepared under sub.
(4m) or s.
227.19 (5) (b) 3., the person preparing the analysis shall provide a detailed explanation of any variance from the agency's estimate under this subdivision.
227.137(3)(b)2.
2. A determination, for purposes of the requirement under s.
227.139, as to whether $10,000,000 or more in implementation and compliance costs are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals over any 2-year period as a result of the proposed rule.
227.137(3)(c)
(c) An analysis of the actual and quantifiable benefits of the proposed rule, including an assessment of how effective the proposed rule will be in addressing the policy problem that the rule is intended to address.
227.137(3)(d)
(d) An analysis of alternatives to the proposed rule, including the alternative of not promulgating the proposed rule.
227.137(3)(e)
(e) A determination made in consultation with the businesses, local governmental units, and individuals that may be affected by the proposed rule as to whether the proposed rule would adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state.
227.137(3)(f)
(f) Except as provided in this paragraph, if the economic impact analysis relates to a proposed rule of the department of safety and professional services under s.
101.63 (1) establishing standards for the construction of a dwelling, as defined in s.
101.61 (1), an analysis of whether the proposed rule would increase the cost of constructing or remodeling such a dwelling by more than $1,000. This paragraph applies notwithstanding that the purpose of the one- and 2-family dwelling code under s.
101.60 includes promoting interstate uniformity in construction standards. This paragraph does not apply to a proposed rule whose promulgation has been authorized under s.
227.19 (5) (fm).
227.137(3)(g)
(g) An analysis of the ways in which and the extent to which the proposed rule would place any limitations on the free use of private property, including a discussion of alternatives to the proposed rule that would minimize any such limitations.
227.137(4)
(4) On the same day that the agency submits the economic 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 economic impact analysis is submitted under this subsection so that the economic impact of the proposed rule is significantly changed, the agency shall prepare a revised economic impact analysis for the proposed rule as modified. A revised economic impact analysis shall be prepared and submitted in the same manner as an original economic impact analysis is prepared and submitted.
227.137(4m)(a)(a) After an agency submits an economic impact analysis for a proposed rule to the legislature under sub.
(4), but before the agency submits the proposed rule for approval under s.
227.185, either cochairperson of the joint committee for review of administrative rules may request an independent economic impact analysis to be prepared for the proposed rule.
227.137(4m)(am)1.1. A request by the senate cochairperson of the joint committee for review of administrative rules for an independent economic impact analysis under par.
(a) requires approval by the committee on senate organization.
227.137(4m)(am)2.
2. A request by the assembly cochairperson of the joint committee for review of administrative rules for an independent economic impact analysis under par.
(a) requires approval by the committee on assembly organization.
227.137(4m)(b)1.1. If a cochairperson of the joint committee for review of administrative rules requests an independent economic impact analysis under par.
(a), and the request is approved under par.
(am), the cochairperson shall notify the agency proposing the proposed rule and shall contract with a person that is not an agency to prepare the independent economic impact analysis.
227.137(4m)(b)2.
2. Costs of completing an independent economic impact analysis shall be paid as follows:
227.137(4m)(b)2.a.
a. If the estimate in the independent economic impact analysis of total implementation and compliance costs under sub.
(3) (b) 1. varies from the agency's estimate by 15 percent or more or varies from the agency's determination that there will be no implementation or compliance costs, the cochairperson shall assess the agency that is proposing the proposed rule for the costs of completing the independent economic impact analysis.
227.137(4m)(b)2.b.
b. If the estimate in the independent economic impact analysis of total implementation and compliance costs under sub.
(3) (b) 1. does not vary from the agency's estimate by 15 percent or more or is in accord with the agency's determination that there will be no implementation and compliance costs, the costs of completing the independent economic impact analysis shall be paid from the appropriation account that corresponds to his or her house of the legislature under s.
20.765 (1) (a) or
(b).
227.137(4m)(b)2.c.
c. Notwithstanding subd.
2. a. and
b., if the maximum potential obligation under the contract for completing the independent economic impact analysis exceeds $50,000, the cochairperson of the joint committee for review of administrative rules who is requesting the independent economic impact analysis shall submit the proposed contract to the joint committee on finance for the purpose of determining the funding source for the costs of completing the independent economic impact analysis, and the costs of completing the independent economic impact analysis shall be paid as provided by the joint committee on finance. If the joint committee on finance does not act to determine the funding source within 90 days, the costs of completing the independent economic impact analysis shall be paid as provided in subd.
2. a. and
b. 227.137(4m)(c)
(c) A person preparing an independent economic impact analysis under par.
(b) shall do all of the following:
227.137(4m)(c)2.
2. Upon completion of the analysis, submit the analysis to the agency, 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.
227.137(4m)(c)3.
3. Complete the independent economic impact analysis within 60 days after contracting to prepare the analysis.
227.137(4m)(d)
(d) When an independent economic impact analysis is requested under par.
(a), the agency may not submit the proposed rule for approval under s.
227.185 until the agency receives the completed independent economic impact analysis.
227.137(5)
(5) This section does not apply to emergency rules promulgated under s.
227.24.
227.137 Annotation
In this case, the plaintiff failed to establish undisputed facts from the record that would allow the court to assess to any degree of specificity whether the change in economic effects were significant due to the draft rule change so as to warrant the preparation of a new economic impact statement under sub. (4). Applegate-Bader Farm, LLC v. DOR,
2020 WI App 7,
390 Wis. 2d 708,
940 N.W.2d 725,
18-1239.
227.137 Annotation
Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.
227.138
227.138
Retrospective economic impact analyses for rules. 227.138(1)(1)
The joint committee for review of administrative rules may direct an agency to prepare a retrospective economic impact analysis for any of an agency's rules that are published in the code. The committee may identify one or more specific chapters, sections, or other subunits in the code that are administered by the agency as the rules that are to be the subject of the analysis and may specify a deadline for the preparation of the analysis. A retrospective economic impact analysis shall contain information on the economic effect of the rules on specific businesses, business sectors, public utility ratepayers, local governmental units, and the state's economy as a whole. When preparing the analysis, the agency shall solicit information and advice from businesses, associations representing businesses, local governmental units, and individuals that have been affected by the rules. The agency shall prepare the retrospective economic impact analysis in coordination with local governmental units that have been affected by the rules. The agency may request information that is reasonably necessary for the preparation of a retrospective economic impact analysis from other businesses, associations, local governmental units, and individuals and from other agencies. The retrospective economic impact analysis shall include all of the following:
227.138(1)(a)
(a) An analysis and quantification of the policy problem that the rules were intended to address, including comparisons with the approaches used by the federal government and by Illinois, Iowa, Michigan, and Minnesota to address that policy problem.
227.138(1)(b)
(b) An analysis and detailed quantification of the economic impact of the rules, including the implementation and compliance costs that have been incurred by or passed along to the businesses, local governmental units, and individuals that have been affected by the rules.
227.138(1)(c)
(c) An analysis of the actual and quantifiable benefits of the rules, including an assessment of how effective the rules have been in addressing the policy problem that the rules were intended to address.
227.138(1)(d)
(d) An analysis of alternatives to the rules, including the alternative of repealing the rules.
227.138(1)(e)
(e) A determination made in consultation with the businesses, local governmental units, and individuals that have been affected by the rules as to whether the rules have adversely affected in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state.
227.138(1)(f)
(f) An analysis of the ways in which and the extent to which the rules have placed limitations on the free use of private property, including a discussion of alternatives to the rules that would minimize any such limitations.
227.138(1)(g)
(g) A comparison of the actual economic effect of the rules being analyzed to any economic impact analysis that analyzed the expected economic effect of those rules when they were proposed.
227.138(1)(h)
(h) Any other information requested by the committee related to the economic impact of the rules.
227.138(2)
(2) An agency that prepares a retrospective economic impact analysis under sub.
(1) shall 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. The agency shall also send an electronic copy of the analysis to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register.
227.138 History
History: 2017 a. 108.
227.139
227.139
Passage of bill required for certain rules. 227.139(1)(1)
If an economic impact analysis prepared under s.
227.137 (2), a revised economic impact analysis prepared under s.
227.137 (4), or an independent economic impact analysis prepared under s.
227.137 (4m) or
227.19 (5) (b) 3. indicates that $10,000,000 or more in implementation and compliance costs are reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals over any 2-year period as a result of the proposed rule, the agency proposing the rule shall stop work on the proposed rule and may not continue promulgating the proposed rule notwithstanding any provision authorizing or requiring the agency to promulgate the proposed rule, except as authorized under sub.
(2).
227.139(2)(a)(a) Any member of the legislature may introduce a bill authorizing an agency to promulgate a rule that the agency is prohibited from promulgating under sub.
(1). The agency may resume the rule-making process as provided in this subchapter upon enactment of a bill introduced under this paragraph.
227.139(2)(b)
(b) If an agency is prohibited from promulgating a rule under sub.
(1), the agency may modify the proposed rule, if the modification is germane to the subject matter of the proposed rule, to address the implementation and compliance costs of the proposed rule. If the agency modifies a proposed rule under this paragraph, the agency shall prepare a revised economic impact analysis under s.
227.137 (4). Following the modification, the agency may continue with the rule-making process as provided in this subchapter if the revised economic impact analysis prepared by the agency indicates, and any independent economic impact analysis prepared under s.
227.137 (4m) or
227.19 (5) (b) 3. subsequent to the agency's modification also indicates, that $10,000,000 or more in implementation and compliance costs are not reasonably expected to be incurred by or passed along to businesses, local governmental units, and individuals over any 2-year period as a result of the proposed rule.
227.139(3)
(3) This section does not apply to rules promulgated under s.
227.24.
227.139(4)(a)(a) This section does not apply to a proposed rule of the department of natural resources relating to air quality if all of the following apply:
227.139(4)(a)2.
2. Any standard, requirement, or limitation proposed in the rule is consistent with and no more stringent in substance or form than what is required under the federal clean air act,
42 USC 7401 to
7671q, and regulations issued by the federal environmental protection agency under that act.
227.139(4)(a)3.
3. The rule proposes to regulate only those emissions or substances explicitly required to be regulated under a state implementation plan described in subd.
1. 227.139(4)(b)
(b) If the department of natural resources believes that par.
(a) applies to a proposed rule, the department shall include a statement to that effect in any economic impact analysis prepared under s.
227.137 for the proposed rule.
227.139 History
History: 2017 a. 57.
227.14
227.14
Preparation of proposed rules. 227.14(1)(1)
Form and style. In preparing a proposed rule, an agency shall adhere substantially to the form and style used by the legislative reference bureau in the preparation of bill drafts and the form and style specified in the manual prepared by the legislative council staff and the legislative reference bureau under s.
227.15 (7). To the greatest extent possible, an agency shall prepare proposed rules in plain language which can be easily understood.
227.14(1m)
(1m) Exception; preparation of certain environmental rules based on federal regulations. 227.14(1m)(a)
(a) Notwithstanding sub.
(1), an agency may use the format of federal regulations published in the code of federal regulations in preparing a proposed rule for publication or distribution and in preparing a proposed rule for filing if the agency determines that all or part of a state environmental regulatory program is to be administered according to standards, requirements or methods which are identical to standards, requirements or methods specified for all or part of a federal environmental regulatory program.
227.14(1m)(b)
(b) Notwithstanding sub.
(1), an agency may use the format of federal regulations published in the code of federal regulations in preparing a proposed rule for publication or distribution and in preparing a proposed rule for filing if the agency determines that all or part of a state environmental regulatory program is to be administered according to standards, requirements or methods which are similar to standards, requirements or methods specified for all or part of a federal environmental regulatory program.
227.14(1s)
(1s) Exception; preparation of certain rules based on federal food code. Notwithstanding sub.
(1), if the department of agriculture, trade and consumer protection or the department of health services prepares a proposed rule based on the model food code published by the federal food and drug administration, the proposed rule may be in the format of the model food code.
227.14(2)(a)
(a) An agency shall prepare in plain language an analysis of each proposed rule, which shall be printed as a preface to the text of the proposed rule when it is published or distributed. The analysis shall include all of the following:
227.14(2)(a)1.
1. A reference to each statute that the proposed rule interprets, each statute that authorizes its promulgation, each related statute or related rule, and an explanation of the agency's authority to promulgate the proposed rule under those statutes.
227.14(2)(a)3.
3. A summary of and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule.
227.14(2)(a)3m.
3m. A summary of any public comments and feedback on the statement of scope of the proposed rule that the agency received at any preliminary public hearing and comment period held under s.
227.136 and a description of how and to what extent the agency took those comments and that feedback into account in drafting the proposed rule.
227.14(2)(a)4.
4. A comparison with similar rules in Illinois, Iowa, Michigan, and Minnesota.
227.14(2)(a)5.
5. A summary of the factual data and analytical methodologies that the agency used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule.
227.14(2)(a)6.
6. Any analysis and supporting documentation that the agency used in support of the agency's determination of the rule's effect on small businesses under s.
227.114 or that was used when the agency prepared an economic impact analysis under s.
227.137 (3).
227.14(2)(a)6m.
6m. A copy of any comments and opinion prepared by the board of veterans affairs under s.
45.03 (2m) for rules that are proposed by the department of veterans affairs.
227.14(2)(a)7.
7. The electronic mail address and telephone number of an agency contact person for the proposed rule.
227.14(2)(a)8.
8. The place where comments on the proposed rule should be submitted and the deadline for submitting those comments, if the deadline is known at the time the proposed rule is submitted to the legislative council staff under s.
227.15 or, for a rule promulgated under s.
186.118 (2) (a) or
(3) (b) 1., submitted as provided in s.
186.118 (2) (b) or
(3) (b) 2. 227.14(2)(b)
(b) If the proposed rule is prepared in the format authorized under sub.
(1m), the analysis shall include a reference to the federal regulation upon which it is based. If the proposed rule is prepared in the format authorized under sub.
(1m) but differs from the federal regulation as permitted under sub.
(1m) (b), the analysis shall specify each portion of the proposed rule that differs from the federal regulation upon which it is based.
227.14(2g)
(2g) Review by the small business regulatory review board. On the same day that an agency submits to the legislative council staff under s.
227.15 a proposed rule that may have an economic impact on small businesses, the agency shall submit the proposed rule, the analysis required under sub.
(2), and a description of its actions taken to comply with s.
227.114 (2) and
(3) to the small business regulatory review board. The board may use cost-benefit analysis to determine the fiscal effect of the rule on small businesses and shall determine whether the proposed rule will have a significant economic impact on a substantial number of small businesses and whether the agency has complied with subs.
(2) and
(2m) and s.
227.114 (2) and
(3). Except as provided in subs.
(1m) and
(1s), each proposed rule shall include provisions detailing how the rule will be enforced. If the board determines that the rule does not include an enforcement provision or that the agency failed to comply with sub.
(2) or
(2m) or s.
227.114 (2) or
(3), the board shall notify the agency of that determination and ask the agency to comply with any of those requirements. If the board determines that the proposed rule will not have a significant economic impact on a substantial number of small businesses, the board shall submit a statement to that effect to the agency that sets forth the reason for the board's decision. If the board determines that the proposed rule will have a significant economic impact on a substantial number of small businesses, the board may submit to the agency suggested changes in the proposed rule to minimize the economic impact of the proposed rule, or may recommend the withdrawal of the proposed rule under sub.
(6). In addition, the board may submit other suggested changes in the proposed rule to the agency, including proposals to reduce the use of cross-references in the rule. The board shall send a report of any suggested changes and of any notice of failure to include enforcement provisions or to comply with sub.
(2) or
(2m) or s.
227.114 (2) or
(3) to the legislative council staff. The notification to the agency may include a request that the agency do any of the following:
227.14(2g)(a)
(a) Verify that the proposed rule does not conflict with, overlap, or duplicate other rules or federal regulations.
227.14(2g)(b)
(b) Require the inclusion of fee information and fee schedules in the analysis under sub.
(2), including why fees are necessary and for what purpose the fees will be used.
227.14(2m)
(2m) Quality of agency data and reduction of cross references. Each agency shall, in cooperation with the department of administration, ensure the accuracy, integrity, objectivity, and consistency of the data that is used when preparing a proposed rule and when completing an analysis of the proposed rule under sub.
(2). Each agency shall reduce the amount of cross-references to the statutes in proposed and final rules. A person affected by a proposed rule may submit comments to the agency regarding the accuracy, integrity, or consistency of that data.
227.14(3)
(3) Reference to applicable forms. If a proposed rule requires a new or revised form, an agency shall include a reference to the form in a note to the proposed rule and shall attach to the proposed rule a copy of the form or a description of how a copy may be obtained. The legislative reference bureau shall insert the reference in the code as a note to the rule.
227.14(4)(a)
(a) An agency shall prepare a fiscal estimate for each proposed rule before it is submitted to the legislative council staff under s.
227.15.
227.14(4)(b)
(b) The fiscal estimate shall include the major assumptions used in its preparation and a reliable estimate of the fiscal impact of the proposed rule, including:
227.14(4)(b)1.
1. The anticipated effect on county, city, village, town, school district, technical college district and sewerage district fiscal liabilities and revenues.
227.14(4)(b)2.
2. A projection of the anticipated state fiscal effect during the current biennium and a projection of the net annualized fiscal impact on state funds.
227.14(4)(b)3.
3. For rules that the agency determines may have a significant fiscal effect on the private sector, the anticipated costs that will be incurred by the private sector in complying with the rule.
227.14(4)(c)
(c) If a proposed rule interpreting or implementing a statute has no independent fiscal effect, the fiscal estimate prepared under this subsection shall be based on the fiscal effect of the statute.
227.14(4)(d)
(d) If a proposed rule is revised so that its fiscal effect is significantly changed prior to its issuance, an agency shall prepare a revised fiscal estimate before promulgating the rule. The agency shall give notice of a revised fiscal estimate in the same manner that notice of the original estimate is given.
227.14(4m)
(4m) Notice of submittal to legislative council staff. On the same day that an agency submits a proposed rule to the legislative council staff under s.
227.15, the agency shall prepare a written notice of the agency's submittal to the legislative council staff. The notice shall include a statement of the date on which the proposed rule has been submitted to the legislative council staff for review, of the subject matter of the proposed rule, and of whether a public hearing on the proposed rule is required under s.
227.16, and shall identify the organizational unit within the agency that is primarily responsible for the promulgation of the rule. The notice shall also include a statement containing the identifying number of the statement of scope for the proposed rule assigned under s.
227.135 (3), the date of publication and issue number of the register in which the statement of scope is published, and the date of approval of the statement of scope by the individual or body with policy-making powers over the subject matter of the proposed rule under s.
227.135 (2). The notice shall be approved by the individual or body with policy-making powers over the subject matter of the proposed rule. The agency shall send an electronic copy of the notice to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register. On the same day that the agency sends the notice to the legislative reference bureau, the agency shall send a copy of the notice to the secretary of administration.
227.14(5)
(5) Copies available to the public at no cost. An agency, upon request, shall make available to the public at no cost a copy of any proposed rule, including the analysis, fiscal estimate and any related form.
227.14(6)(a)
(a) Notwithstanding s.
227.01 (10), in this subsection, “proposed rule" means all of the agency's proposal to promulgate a rule.
227.14(6)(b)
(b) An agency may withdraw a proposed rule at any time prior to filing under s.
227.20 by notifying the presiding officer of each house of the legislature and the legislative council staff of its intention not to promulgate the proposed rule.
227.14(6)(c)1.1. A proposed rule shall be considered withdrawn on whichever of the following dates occurs first, unless it is withdrawn sooner by the agency under par.
(b):
227.14(6)(c)1.a.
a. If the proposed rule is not submitted to the legislature for review under s.
227.19 (2) before the statement of the scope of the proposed rule expires as provided in s.
227.135 (5), on the date that statement of scope expires.
227.14(6)(c)1.b.
b. On December 31 of the 4th year after the year in which it is submitted to the legislative council staff under s.
227.15 (1), unless it has been filed with the legislative reference bureau under s.
227.20 (1) before that date.
227.14(6)(c)2.
2. No action by a legislative committee or by either house of the legislature under s.
227.19 delays the date of withdrawal of a proposed rule under this paragraph.
227.14(6)(d)
(d) If a proposed rule is withdrawn, the proposed rule may be promulgated only by commencing the rule-making procedure again with the preparation, under s.
227.135, of a statement of the scope of the proposed rule that the agency plans to promulgate.
227.14 Annotation
The 2003 Jobs Creation Act: Changing Wisconsin's Regulatory Climate. Fassbender & Kent. Wis. Law. Sept. 2004.
227.15
227.15
Legislative council staff. 227.15(1)(1)
Submittal to legislative council staff. Prior to a public hearing on a proposed rule required under s.
227.16 or, if no such 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),
(3), and
(4), any housing impact analysis required under s.
227.115 (2) (a), any revised housing impact analysis required under s.
227.115 (2) (b), 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.
227.15(1m)
(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:
227.15(1m)(a)
(a) The electronic mail address and telephone number of an agency contact person for each proposed rule.
227.15(1m)(d)
(d) The written report of the legislative council staff review of the proposed rule prepared under sub.
(2) and any agency comments regarding that report.
227.15(1m)(e)
(e) 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).
227.15(1m)(f)
(f) The place where comments on the proposed rule should be submitted and the deadline for submitting those comments.
227.15(2)
(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:
227.15(2)(a)
(a) Review the statutory authority under which the agency intends to promulgate the proposed rule.
227.15(2)(b)
(b) Ensure that the promulgation procedures required by this chapter are followed.
227.15(2)(c)
(c) Review proposed rules for form, style and placement in the code.
227.15(2)(d)
(d) Review proposed rules to avoid conflict with or duplication of existing rules.
227.15(2)(e)
(e) Review proposed rules for adequate references to related statutes, rules and forms.
227.15(2)(f)
(f) Review proposed rules for clarity, grammar, punctuation and use of plain language.
227.15(2)(g)
(g) Review proposed rules to determine potential conflicts and to make comparisons with related federal statutes and regulations.
227.15(2)(i)
(i) Streamline and simplify the rule-making process.
227.15(3)
(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).
227.15(4)
(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.
227.15(5)
(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.
227.15(6)
(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.
227.15(7)
(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.
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)(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 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)(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)(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)(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).
227.18
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)(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)(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)(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)(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.
227.19(4)(b)1.1. Except as otherwise provided in this paragraph, the committee review period for each committee extends for 30 days after referral of the proposed rule to the committee under sub.
(2). If the chairperson or the cochairpersons of a committee take either of the following actions within the 30-day period, the committee review period for that committee is continued for 30 days from the date on which the first 30-day review period would have expired:
227.19(4)(b)1.a.
a. Request in writing that the agency meet with the committee to review the proposed rule.
227.19(4)(b)1.b.
b. Publish or post notice that the committee will hold a meeting or hearing to review the proposed rule and immediately send a copy of the notice to the agency.
227.19(4)(b)1m.
1m. Except as provided under subd.
5., if a notice and report received under sub.
(2) after the last day of the legislature's final general-business floorperiod as specified in sub.
(2) is referred for committee review before the first day of the next regular session of the legislature, the committee review period for each committee to which the proposed rule is referred extends to the day specified under s.
13.02 (1) for the next legislature to convene.
227.19(4)(b)2.
2. If a committee, by a majority vote of a quorum of the committee, requests modifications in a proposed rule, and the agency, in writing, agrees to consider making modifications, the review period for both committees to which the proposed rule is referred is extended either to the 10th working day following receipt by those committees of the modified proposed rule or a written statement to those committees that the agency will not make the modifications or to the expiration of the review period under subd.
1. or, if applicable, subd.
1m., whichever is later. There is no limit either on the number of modification agreements that may be entered into or on the time within which modifications may be made.
227.19(4)(b)2m.
2m. If a committee requests in writing that the public service 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 commission shall prepare an energy impact report in the manner provided under s.
227.117 (1). The commission shall submit a copy of the report to the committee and to the agency that proposed the rule within 30 days after the written request is submitted to the commission. The review period for both committees to which the proposed rule is referred is extended to the 10th working day following receipt by those committees of the report, to the expiration of the review period under subd.
1. or, if applicable, subd.
1m., or to the expiration of the review period under subd.
2., whichever is later.
227.19(4)(b)3.
3. An agency may, on its own initiative, submit a germane modification to a proposed rule to a committee during its review period. If a germane modification is submitted within the final 10 days of a committee review period under subd.
1., the review period for both committees to which the proposed rule is referred is extended for 10 working days. If a germane modification is submitted to a committee after the committee in the other house has concluded its jurisdiction over the proposed rule, the jurisdiction of the committee of the other house is revived for 10 working days. In this subdivision, an agency's proposal to delete part of a proposed rule under committee review shall be treated as a germane modification of the proposed rule.
227.19(4)(b)3m.
3m. An agency may, during the committee review period, reconsider its action by recalling the proposed rule from the chief clerk of each house of the legislature. If the agency decides to continue the rule-making process with regard to the proposed rule, the agency shall resubmit the proposed rule, either in its recalled form or with one or more germane modifications, to the chief clerk in each house of the legislature as provided in sub.
(2) and the committee review period under subd.
1. or, if applicable, subd.
1m. shall begin again.
227.19(4)(b)4.
4. An agency may modify a proposed rule following the committee review period if the modification is germane to the subject matter of the proposed rule. If a germane modification is made, the agency shall recall the proposed rule from the chief clerk of each house of the legislature. The proposed rule, with the germane modification, shall be resubmitted to the presiding officer in each house of the legislature as provided in sub.
(2) and the committee review period shall begin again. Following the committee review period, an agency may not make any modification that is not germane to the subject matter of the proposed rule. In this subdivision, an agency's proposal to delete part of a proposed rule under committee review shall be treated as a germane modification of the proposed rule.
227.19(4)(b)5.
5. If a committee in one house votes to object to a proposed rule or to a part of the proposed rule under par.
(d), the chairperson or cochairpersons of the committee shall immediately notify the chairperson or cochairpersons of the committee in the other house to which the proposed rule was referred. Upon receipt of the notice, the review period for the committee in the other house immediately ceases and no further action on the proposed rule or part of the proposed rule objected to may be taken under this paragraph by that committee, but the committee may proceed under par.
(d) to object to the proposed rule or part of the proposed rule.
227.19(4)(b)6.
6. If a committee has not concluded its jurisdiction over a proposed rule or a part of a proposed rule before the day specified under s.
13.02 (1) for the next legislature to convene, that jurisdiction immediately ceases and, within 10 working days after that date, the presiding officer of the appropriate house shall refer the proposed rule or part of the proposed rule to the appropriate standing committee of the next legislature as provided under sub.
(2). If a committee review period is interrupted by the loss of jurisdiction under this subdivision, a new committee review period as provided in subd.
1. shall begin for the committee to which the proposed rule or part of the proposed rule is referred under this subdivision beginning on the date of referral under this subdivision.
227.19(4)(c)
(c)
Waiver of committee review. A committee may waive its jurisdiction over a proposed rule prior to the expiration of the committee review period by adopting, by a majority vote of a quorum of the committee, a motion waiving the committee's jurisdiction.
227.19(4)(d)
(d)
Committee action. A committee, by a majority vote of a quorum of the committee during the applicable review period under par.
(b), may object to a proposed rule or to a part of a proposed rule for one or more of the following reasons:
227.19(4)(d)2.
2. An emergency relating to public health, safety or welfare.
227.19(4)(d)5.
5. A change in circumstances since enactment of the earliest law upon which the proposed rule is based.
227.19(4)(d)6.
6. Arbitrariness and capriciousness, or imposition of an undue hardship.
227.19(4)(d)7.
7. In the case of a proposed rule of the department of safety and professional services under s.
101.63 (1) establishing standards for the construction of a dwelling, as defined in s.
101.61 (1), the proposed rule would increase the cost of constructing or remodeling such a dwelling by more than $1,000. This subdivision applies notwithstanding that the purpose of the one- and 2-family dwelling code under s.
101.60 includes promoting interstate uniformity in construction standards. This subdivision does not apply to a proposed rule whose promulgation has been authorized under sub.
(5) (fm).
227.19(4)(e)
(e)
Conclusion of committee jurisdiction. Subject to par.
(b) 3., a committee's jurisdiction over a proposed rule is concluded when the committee objects to, approves, or waives its jurisdiction over the proposed rule or when the committee review period ends, whichever occurs first. When a committee's jurisdiction over a proposed rule is concluded, the committee shall report the proposed rule and any objection as provided in sub.
(5) (a).
227.19(5)
(5) Joint committee for review of administrative rules. 227.19(5)(a)(a)
Referral. When a committee's jurisdiction over a proposed rule is concluded as provided in sub.
(4) (e), the committee shall report the proposed rule and any objection to the chief clerk of the appropriate house within 5 working days after that jurisdiction is concluded. The chief clerk shall refer the proposed rule and any objection to the joint committee for review of administrative rules within 5 working days after receiving the committee report.
227.19(5)(b)1.1. Except as otherwise provided in this paragraph, the review period for the joint committee for review of administrative rules extends for 30 days after the last referral of a proposed rule and any objection to that committee, and during that review period that committee may take any action on the proposed rule in whole or in part permitted under this subsection. The joint committee for review of administrative rules shall meet and take action in executive session during that period with respect to any proposed rule or any part of a proposed rule to which a committee has objected and may meet and take action in executive session during that period with respect to any proposed rule or any part of a proposed rule to which no committee has objected, except that if the cochairpersons take either of the following actions within the 30-day period, the joint committee review period is continued for 30 days from the date on which the first 30-day review period would have expired:
227.19(5)(b)1.a.
a. Request in writing that the agency meet with the joint committee for review of administrative rules to review the proposed rule.
227.19(5)(b)1.b.
b. Publish or post notice that the joint committee for review of administrative rules will hold a meeting or hearing to review the proposed rule and immediately send a copy of the notice to the agency.
227.19(5)(b)1m.
1m. If a notice and report received under sub.
(2) after the last day of the legislature's final general-business floorperiod as specified in sub.
(2) is referred for review by the joint committee for review of administrative rules before the first day of the next regular session of the legislature, the review period for the joint committee for review of administrative rules extends to the day specified under s.
13.02 (1) for the next legislature to convene. During that review period, the joint committee for review of administrative rules may meet and take action in executive session and may take any action on the proposed rule in whole or in part permitted under this subsection. If the joint committee for review of administrative rules meets in executive session with respect to a proposed rule or part of a proposed rule to which a committee has objected, that joint committee shall take action as permitted under this subsection with respect to the committee's objection.
227.19(5)(b)2.
2. If the joint committee for review of administrative rules, by a majority vote of a quorum of the committee, requests modifications in a proposed rule, and the agency, in writing, agrees to consider making modifications, the review period for the joint committee is extended either to the 10th working day following receipt by the joint committee of the modified proposed rule or a written statement to the joint committee that the agency will not make the modifications or to the expiration of the review period under subd.
1. or, if applicable, subd.
1m., whichever is later. There is no limit either on the number of modification agreements that may be entered into or on the time within which modifications may be made.
227.19(5)(b)3.
3. The joint committee for review of administrative rules, by a majority vote of a quorum of the committee, may request the preparation of an independent economic impact analysis for a proposed rule, regardless of whether an independent economic impact analysis was prepared under s.
227.137 (4m). If the joint committee for review of administrative rules requests an independent economic impact analysis under this subdivision, the committee shall request approval by the committee on senate organization and the committee on assembly organization. If both the committee on senate organization and the committee on assembly organization approve the request, the joint committee for review of administrative rules shall notify the agency proposing the proposed rule and shall contract with a person that is not an agency to prepare the independent economic impact analysis, and the review period for the committee is extended to the 10th working day following receipt by the committee of the completed analysis. The person preparing the independent economic impact analysis shall comply with s.
227.137 (4m) (c) 1. to
3. Costs of completing an independent economic impact analysis shall be paid as follows:
227.19(5)(b)3.a.
a. If the estimate in the independent economic impact analysis of total implementation and compliance costs under s.
227.137 (3) (b) 1. varies from the agency's estimate by 15 percent or more or varies from the agency's determination that there will be no implementation or compliance costs, the committee shall assess the agency that is proposing the proposed rule for the costs of completing the independent economic impact analysis.
227.19(5)(b)3.b.
b. If the estimate in the independent economic impact analysis of total implementation and compliance costs under s.
227.137 (3) (b) 1. does not vary from the agency's estimate by 15 percent or more or is in accord with the agency's determination that there will be no implementation and compliance costs, the costs of completing the independent economic impact analysis shall be paid in equal parts from the appropriation accounts under s.
20.765 (1) (a) and
(b).
227.19(5)(b)3.c.
c. Notwithstanding subd.
3. a. and
b., if the maximum potential obligation under the contract for completing the independent economic impact analysis exceeds $50,000, the joint committee for review of administrative rules shall submit the proposed contract to the joint committee on finance for the purpose of determining the funding source for the costs of completing the independent economic impact analysis, and the costs of completing the independent economic impact analysis shall be paid as provided by the joint committee on finance. If the joint committee on finance does not act to determine the funding source within 90 days, the costs of completing the independent economic impact analysis shall be paid as provided in subd.
3. a. and
b. 227.19(5)(b)4.
4. If the joint committee for review of administrative rules has not concluded its jurisdiction over a proposed rule or a part of a proposed rule before the day specified under s.
13.02 (1) for the next legislature to convene, that jurisdiction immediately ceases and, within 10 working days after that date, the presiding officer of the appropriate house shall refer the proposed rule or part of the proposed rule to the joint committee for review of administrative rules of the next legislature. If a committee review period is interrupted by the loss of jurisdiction under this subdivision, a new committee review period as provided in subd.
1. shall begin for the joint committee for review of administrative rules to which the proposed rule or part of the proposed rule is referred under this subdivision beginning on the date of referral under this subdivision.
227.19(5)(c)
(c)
Agency not to promulgate rule during joint committee review. An agency may not promulgate a proposed rule or a part of a proposed rule until the joint committee for review of administrative rules nonconcurs in the objection of the committee, concurs in the approval of the committee, otherwise approves the proposed rule or part of the proposed rule, or waives its jurisdiction over the proposed rule or part of the proposed rule under par.
(d), until the expiration of the review period under par.
(b) 1., if no committee has objected to the proposed rule or the part of the proposed rule, until a bill introduced under par.
(e) fails to be enacted, or until a bill introduced under par.
(em) is enacted. An agency may promulgate any part of a proposed rule to which no objection has been made.
227.19(5)(d)
(d)
Joint committee action. The joint committee for review of administrative rules may nonconcur in a committee's objection to a proposed rule or a part of a proposed rule, concur in a committee's approval of a proposed rule or a part of a proposed rule, otherwise approve a proposed rule or a part of a proposed rule, or waive its jurisdiction over a proposed rule or a part of a proposed rule by voting to nonconcur, concur, or approve, or to waive its jurisdiction, during the applicable review period under par.
(b). If the joint committee for review of administrative rules objects to a proposed rule or a part of a proposed rule and invokes this paragraph, an agency may not promulgate the proposed rule or part of the proposed rule objected to until a bill introduced under par.
(e) fails to be enacted. The joint committee for review of administrative rules may object to a proposed rule or a part of a proposed rule under this paragraph only for one or more of the reasons specified under sub.
(4) (d).
227.19(5)(dm)
(dm)
Indefinite objection; joint committee action. If the joint committee for review of administrative rules objects to a proposed rule or a part of a proposed rule and invokes this paragraph, the agency may not promulgate the proposed rule or part of the proposed rule objected to until a bill introduced under par.
(em) is enacted. The joint committee for review of administrative rules may object to a proposed rule or a part of a proposed rule under this paragraph only for one or more of the reasons specified under sub.
(4) (d). This paragraph does not apply to a proposed rule whose promulgation has been previously authorized under par.
(fm).
227.19(5)(e)
(e)
Bills to prevent promulgation. When the joint committee for review of administrative rules objects to a proposed rule or a part of a proposed rule under par.
(d) it shall, within 30 days of the date of the objection, meet and take executive action regarding the introduction, in each house of the legislature, of a bill to support the objection. The joint committee shall introduce the bills within 5 working days after taking executive action in favor of introduction of the bills unless the bills cannot be introduced during this time period under the joint rules of the legislature.
227.19(5)(em)
(em)
Indefinite objection; bill to authorize promulgation. If the joint committee for review of administrative rules objects to a proposed rule or a part of a proposed rule under par.
(dm), any member of the legislature may introduce a bill to authorize promulgation of the proposed rule or part of the proposed rule. This paragraph does not apply to a proposed rule whose promulgation has been previously authorized under par.
(fm).
227.19(5)(f)
(f)
Bills to prevent promulgation; effect. If both bills required under par.
(e) are defeated, or fail to be enacted in any other manner, the agency may promulgate the proposed rule or part of the proposed rule that was objected to. If either bill becomes law, the agency may not promulgate the proposed rule or part of the proposed rule that was objected to unless a subsequent law specifically authorizes its promulgation. This paragraph applies to bills 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.
227.19(5)(fm)
(fm)
Indefinite objection; bills to authorize promulgation; effect. If all bills introduced under par.
(em) are defeated, or fail to be enacted in any other manner, the agency may not promulgate the proposed rule or part of the proposed rule that was objected to unless subsequent law specifically authorizes its promulgation. If any of those bills becomes law, the agency may promulgate the proposed rule or part of the proposed rule that was objected to.
227.19(5)(g)
(g)
Introduction of bills in next session; effect. If the bills required under par.
(e) 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), or if the bills cannot be introduced during this time period under the joint rules of the legislature, the joint committee for review of administrative rules shall introduce the bills on the first day of the next regular session of the legislature, unless either house adversely disposes of either bill. If the joint committee for review of administrative rules is required to introduce the bills, the agency may not promulgate the proposed rule or part of the proposed rule to which the bills pertain except as provided in par.
(f). If either house adversely disposes of either bill, the agency may promulgate the proposed rule or part of the proposed rule that was objected to. In this paragraph, “adversely disposes of" means that one house has voted in one of the following ways:
227.19(6)
(6) Promulgation prevention or authorization procedure. 227.19(6)(a)(a) The legislature may not consider a bill required or permitted under sub.
(5) (e) or
(em) until the joint committee for review of administrative rules has submitted a written report on the bill. The report shall be printed as an appendix to each bill and shall contain:
227.19(6)(a)1.
1. An explanation of the issue involving the proposed rule or part of the proposed rule objected to and the factual situation out of which the issue arose.
227.19(6)(a)2.
2. Arguments presented for and against the proposed rule at the executive session held under sub.
(5) (b).
227.19(6)(a)3.
3. A statement of the action taken by the joint committee for review of administrative rules regarding the proposed rule.
227.19(6)(a)4.
4. A statement and analysis of the grounds upon which the joint committee for review of administrative rules relies for objecting to the proposed rule or part of the proposed rule.
227.19(6)(b)
(b) Upon introduction of the bills under sub.
(5) (e) or
(g), 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, or as soon thereafter as is possible if the legislature is not in a floorperiod 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 section that 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 section.
227.19(7)
(7) Nonapplication. This section does not apply to rules promulgated under s.
227.24.
227.19 Annotation
When administrative agencies promulgate rules, they are exercising legislative power that the legislature has chosen to delegate to them by statute. Stated otherwise, agencies have no inherent constitutional authority to make rules, and their rule-making powers can be repealed by the legislature. It follows that the legislature may place limitations and conditions on an agency's exercise of rulemaking authority, including establishing the procedures by which agencies may promulgate rules. Koschkee v. Taylor,
2019 WI 76,
387 Wis. 2d 552,
929 N.W.2d 600,
17-2278.
227.19 Annotation
Rulemaking is a legislative power that does not fall within the state superintendent of public instruction's supervisory constitutional authority under
article X, section 1, of the Wisconsin Constitution. Rulemaking is a legislative delegation to the state superintendent; therefore, it may be limited or taken away, as the legislature chooses. Koschkee v. Taylor,
2019 WI 76,
387 Wis. 2d 552,
929 N.W.2d 600,
17-2278.
227.19 Annotation
Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.
227.20
227.20
Filing of rules. 227.20(1)(1)
An agency shall file a certified copy of each rule it promulgates with the legislative reference bureau. No rule is valid until the certified copy has been filed. A certified copy shall be typed or duplicated on 8 1/2 by 11 inch paper, leaving sufficient room for a stamp at the top of the first page. Forms that are filed need not comply with the specifications of this subsection. The agency shall also send a copy of each rule to the legislative reference bureau in an electronic format approved by the legislative reference bureau.
227.20(2)
(2) The legislative reference bureau shall endorse the date and the time of filing on each certified copy filed under sub.
(1). The bureau shall keep a file of all certified copies filed under sub.
(1).
227.20(3)
(3) Filing a certified copy of a rule with the legislative reference bureau creates a presumption of all of the following:
227.20(3)(a)
(a) That the rule was duly promulgated by the agency.
227.20(3)(b)
(b) That the rule was filed and made available for public inspection on the date and time endorsed on it.
227.20(3)(d)
(d) That the text of the certified copy of the rule is the text as promulgated by the agency.
227.20 Cross-reference
Cross-reference: See s.
902.03 for provision for judicial notice of administrative rules.
227.20 Annotation
Guidelines promulgated outside the context of one particular contested case do not qualify for exception to the requirement that all rules must be filed under s. 227.023 [now this section]. Here, failure to file the guideline as a rule did not deprive the Department of Industry, Labor and Human Relations of the authority to decide contested cases dealing with pregnancy leaves under the sex discrimination statute. Wisconsin Telephone Co. v. DILHR,
68 Wis. 2d 345,
228 N.W.2d 649 (1975).
227.20 Annotation
Sub. (3) directs a court to presume that the rule was duly promulgated by the agency and that all statutory rule-making procedures have been followed, including those pertaining to the preparation of a housing impact report. This section apparently creates a rebuttable presumption that a court is to presume that the agency that promulgated the rule followed the statute regarding housing reports, but a party challenging the rule may rebut that presumption. The statute also requires courts to respect the legislature's role in reviewing and approving agency rules by presuming the validity of rules that have survived the legislature's scrutiny. Wisconsin Realtors Ass'n v. PSC,
2015 WI 63,
363 Wis. 2d 430,
867 N.W.2d 364,
13-1407.
227.21
227.21
Publication of rules; incorporation by reference. 227.21(1)(1)
The legislative reference bureau shall publish all rules that agencies are directed by this chapter to file with the legislative reference bureau under s.
227.20 in the register and shall publish all permanent rules that agencies are directed by this chapter to file with the legislative reference bureau under s.
227.20 in the code, as provided in s.
35.93.
227.21(2)(a)(a) Except as provided in s.
601.41 (3) (b), to avoid unnecessary expense an agency may, with the consent of the attorney general, adopt standards established by technical societies and organizations of recognized national standing by incorporating the standards in its rules by reference to the specific issue or issues of the publication in which they appear, without reproducing the standards in full.
227.21(2)(b)
(b) The attorney general shall consent to incorporation by reference only in a rule of limited public interest and in a case where the incorporated standards are readily available in published form or are available on optical disc or in another electronic format. Each rule containing an incorporation by reference shall state how the material incorporated may be obtained and, except as provided in s.
601.41 (3) (b), that the standards are on file at the legislative reference bureau.
227.21(2)(c)
(c) An agency that adopts standards under par.
(a) may provide the legislative reference bureau with one or more Web addresses to provide electronic access to the standards for publication in conjunction with the publication of the Wisconsin administrative code and register under s.
35.93.
227.21(3)
(3) A rule promulgated jointly by 2 or more agencies need not be published in more than one place in the code.
227.21(4)
(4) Agency materials that are exempt from the requirements of this chapter under s.
227.01 (13) may be published, either verbatim or in summary form, if the promulgating agency and the legislative reference bureau determine that the public interest would be served by publication.
227.21 Annotation
Consent may not be given to incorporate by reference the U.S. Code or federal regulations, except rules meeting the definition of a technical standard. Material incorporated by reference cannot include future amendments thereto. 59 Atty. Gen. 31. See also 68 Atty. Gen. 9.
227.22
227.22
Effective date of rules. 227.22(1)(1)
In this section, “date of publication" means the date on which a rule is published in the code as required under s.
35.93 (2) (c) 1. 227.22(2)
(2) A rule is effective on the first day of the month commencing after the date of publication unless one of the following occurs:
227.22(2)(a)
(a) The statute under which the rule was promulgated prescribes a different effective date for the rule.
227.22(2)(b)
(b) A later date is prescribed by the agency in a statement filed with the rule.
227.22(2)(c)
(c) The rule is promulgated under s.
227.24, in which case it becomes effective at the time prescribed in that section.
227.22(2)(e)
(e) The rule has a significant economic impact on small businesses, as defined in s.
227.114 (1), in which case the rule applies to small businesses no earlier than the first day of the 3rd month commencing after the date of publication of the rule.
227.22(3)
(3) The legislative reference bureau may prescribe in the manual prepared under s.
227.15 (7) the monthly date prior to which a rule must be filed in order to be included in that month's issue of the register. The legislative reference bureau shall compute the effective date of each rule submitted for publication in the register and shall publish it in a note at the end of each section. For the purpose of computing the effective date, the legislative reference bureau may presume that an issue of the register will be published during the month in which it is designated for publication.
227.23
227.23
Forms. A form imposing a requirement which meets the definition of a rule shall be treated as a rule for the purposes of this chapter, except that:
227.23(1)
(1) Its promulgation need not be preceded by notice and public hearing.
227.23(2)
(2) It need not be promulgated by the board or officer charged with ultimate rule-making authority but may be promulgated by any employee of the agency authorized by the board or officer.
227.23(3)
(3) It need not be published in the code and register in its entirety, but may be listed by title or description together with a statement as to how it may be obtained.
227.23 History
History: 1985 a. 182.
227.23 Cross-reference
Cross-reference: See also ch.
Ins 7, Wis. adm. code.
227.24
227.24
Emergency rules; exemptions. 227.24(1)(a)(a) An agency may, except as provided in s.
227.136 (1), promulgate a rule as an emergency rule without complying with the notice, hearing, and publication requirements under this chapter if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures.
227.24(1)(c)
(c) A rule promulgated under par.
(a) takes effect upon publication in the official state newspaper or on any later date specified in the rule and, except as provided under sub.
(2), remains in effect only for 150 days.
227.24(1)(d)
(d) A rule promulgated under par.
(b) takes effect upon publication in the official state newspaper or on any later date specified in the rule and remains in effect for one year or until it is suspended or the proposed rule corresponding to it is objected to by the joint committee for review of administrative rules, whichever is sooner. If a rule under par.
(b) is suspended or a proposed rule under s.
186.235 (21),
215.02 (18) or
220.04 (8) is objected to by the joint committee for review of administrative rules, any person may complete any transaction entered into or committed to in reliance on that rule and shall have 45 days to discontinue other activity undertaken in reliance on that rule.
227.24(1)(e)
(e) An agency that promulgates a rule under this subsection shall do all of the following:
227.24(1)(e)1d.
1d. Prepare a statement of the scope of the proposed emergency rule as provided in s.
227.135 (1), obtain approval of the statement as provided in s.
227.135 (2), send the statement to the legislative reference bureau for publication in the register as provided in s.
227.135 (3), and hold a preliminary public hearing and comment period if directed under s.
227.136 (1). If the agency changes the scope of a proposed emergency rule as described in s.
227.135 (4), the agency shall prepare and obtain approval of a revised statement of the scope of the proposed emergency rule as provided in s.
227.135 (4). No state employee or official may perform any activity in connection with the drafting of a proposed emergency rule except for an activity necessary to prepare the statement of the scope of the proposed emergency rule until the governor and the individual or body with policy-making powers over the subject matter of the proposed emergency rule approve the statement.
227.24(1)(e)1g.
1g. Submit the proposed emergency rule in final draft form to the governor for approval. The governor, in his or her discretion, may approve or reject the proposed emergency rule. If the governor approves a proposed emergency rule, the governor shall provide the agency with a written notice of that approval. An agency may not file an emergency rule with the legislative reference bureau as provided in s.
227.20 and an emergency rule may not be published until the governor approves the emergency rule in writing.
227.24(1)(e)1m.
1m. Prepare a plain language analysis of the rule in the format prescribed under s.
227.14 (2) and print the plain language analysis with the rule when it is published.
227.24(1)(e)2.
2. Prepare a fiscal estimate for the rule in the format prescribed under s.
227.14 (4), mail the fiscal estimate to each member of the legislature, and send a copy of the fiscal estimate to the legislative reference bureau in an electronic format approved by the legislative reference bureau, not later than 10 days after the date on which the rule is published.
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 shall 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.
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 and the legislative reference bureau. The statement shall identify the specific emergency rule or part of an emergency rule to which it relates.
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 legislative reference bureau 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, and a copy of the rule and fiscal estimate. 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 an 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 emergency rule will have a significant economic impact on a substantial number of small businesses and whether the agency complied with ss.
227.114 (2) and
(3) and
227.14 (2m). If the board determines that the emergency rule will not have a significant economic impact on a substantial number of small businesses, the board shall submit a statement to that effect to the agency that sets forth the reason for the board's decision. If the board determines that the emergency rule will have a significant economic impact on a substantial number of small businesses, the board may submit to the agency and to the legislative council staff suggested changes in the emergency rule to minimize the economic impact of the emergency rule. 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 other 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) and in addition to any preliminary public hearing and comment period held under sub.
(1) (e) 1d., 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 staff under s.
227.15 (2), whichever occurs later.
227.24 Annotation
The effectiveness of an emergency rule may not be extended beyond the initial effective period by simply refiling it. 62 Atty Gen. 305.
227.25
227.25
Legislative reference bureau. 227.25(1)(1)
The legislative reference bureau 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 legislative reference bureau 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 legislative reference bureau prior to filing. As soon as possible after that, the legislative reference bureau shall either approve the request or inform the agency of any change necessary to preserve uniformity in the code.
227.25(4)
(4) The legislative reference bureau 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 they do not appreciably add to an understanding of the rule. The legislative reference bureau shall submit the edited version of any material to the agency for its comments prior to publication.
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, meet and take executive action regarding the introduction, in each house of the legislature, of a bill to support the suspension. The committee shall introduce the bills within 5 working days after taking executive action in favor of introduction of the bills unless the bills cannot be introduced during this time period under the joint rules of the legislature.
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, or as soon thereafter as is possible if the legislature is not in a floorperiod 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)(im)
(im)
Multiple suspensions. Notwithstanding pars.
(i) and
(j), the committee may act to suspend a rule as provided under this subsection multiple times.
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), or if the bills cannot be introduced during this time period under the joint rules of the legislature, unless either house adversely disposes of either bill, the committee shall introduce the bills on the first day of the next regular session of the legislature. If the committee is required to introduce the bills on the first day of the next regular session, 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(2)(L)
(L)
Emergency rules. If the committee suspends an emergency rule under this section, the agency may not submit to the legislature under s.
227.19 (2) the substance of the emergency rule as a proposed permanent rule during the time the emergency rule is suspended.
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(4)(a)
(a) In this subsection, “unauthorized rule" means a rule that an agency lacks the authority to promulgate due to the repeal or amendment of the law that previously authorized its promulgation.
227.26(4)(b)
(b) Notwithstanding ss.
227.114 to
227.117 and
227.135 to
227.19, an agency that promulgated or that otherwise administers a rule that the agency determines is an unauthorized rule shall petition the joint committee for review of administrative rules for authorization to repeal that rule by using the following process:
227.26(4)(b)1.
1. The agency shall submit a petition with a proposed rule that repeals the rule the agency has determined is an unauthorized 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) (a) 1.,
2., and
7. and a statement that the agency is petitioning the joint committee for review of administrative rules to use the process under this subsection to repeal a rule the agency has determined to be an unauthorized rule. The agency shall also send an electronic copy of the petition and the proposed rule to the legislative reference bureau, in a format approved by the legislative reference bureau, for publication in the register.
227.26(4)(b)2.
2. The legislative council staff shall review the petition and proposed rule in accordance with s.
227.15 (2) and submit to the joint committee for review of administrative rules the petition and proposed rule with a written report including a statement of its determination as to whether the proposed rule proposes to repeal an unauthorized rule. The legislative council staff shall send the agency a copy of its report with an indication of the date on which the petition and proposed rule were submitted to the committee.
227.26(4)(b)3.
3. Following receipt of the petition and proposed rule submitted by the legislative council staff under subd.
2., the joint committee for review of administrative rules shall review the petition and proposed rule and may do any of the following:
227.26(4)(b)3.a.
a. Approve the agency's petition if the committee determines that the proposed rule would repeal an unauthorized rule.
227.26(4)(b)3.c.
c. Request that the agency make changes to the proposed rule and resubmit the petition and proposed rule under subd.
1. 227.26(4)(b)4.
4. The committee shall inform the agency in writing of its decision as to the petition.
227.26(4)(c)
(c) If the joint committee for review of administrative rules approves a petition to repeal an unauthorized rule as provided in par.
(b) 3. a., the agency shall promulgate the proposed rule by filing a certified copy of the rule with the legislative reference bureau under s.
227.20, together with a copy of the committee's decision.
227.26 Annotation
In this case, the facial challenge to sub. (2) (im) failed. If one three-month suspension was constitutionally permissible, two three-month suspensions were as well. Under such a scenario, the six-month, rather than three-month, delay was still followed by acceptance of the rule or repeal through bicameral passage and presentment. That fit comfortably within the unchallenged reasoning of
Martinez,
165 Wis. 2d 687 (1992)—a modest suspension that was temporary in nature. Service Employees International Union (SEIU), Local 1 v. Vos,
2020 WI 67,
393 Wis. 2d 38,
946 N.W.2d 35,
19-0614.
227.26 Annotation
A collective bargaining agreement between the regents and the teaching assistants association is not subject to review by the committee. 59 Atty. Gen. 200.
227.26 Annotation
In giving notice of public hearings held under sub. (2), the committee should concurrently employ the various forms of notice available that best fit the particular circumstances. 62 Atty. Gen. 299.
227.26 Annotation
If an administrative rule is properly adopted and is within the power of the legislature to delegate there is no material difference between it and a law. No law, including a valid rule can be revoked by a joint resolution of the legislature as such a resolution deprives the executive its power to veto an act of the legislature. 63 Atty. Gen. 159.
227.26 Annotation
Legislative Committee Review of Administrative Rules in Wisconsin. Bunn & Gallagher. 1977 WLR 935.
227.265
227.265
Repeal or modification of rules. If a bill to repeal or modify a rule is enacted, the procedures under ss.
227.114 to
227.21 and
227.26 do not apply. Instead, the legislative reference bureau shall publish the repeal or modification in the Wisconsin administrative code and register as required under s.
35.93, and the repeal or modification shall take effect as provided in s.
227.22.
227.265 History
History: 2013 a. 125,
136,
210,
277,
278,
295,
320,
332,
361,
363.
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 legislative reference bureau under s.
227.20 or modified under s.
227.265, 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;
2005 a. 249;
2007 a. 20;
2013 a. 125,
136,
210,
277,
278,
295,
320,
332,
361,
363.
227.27 Annotation
When interpreting administrative regulations, a court uses the same rules of interpretation as the court applies to statutes. DaimlerChrysler v. LIRC,
2007 WI 15,
299 Wis. 2d 1,
727 N.W.2d 311,
05-0544.
227.27 Annotation
An administrative agency's interpretation of its own rules or regulations is controlling unless plainly erroneous or inconsistent with the regulations. For an agency's interpretation of its own rules or regulations, if the interpretation is reasonable and consistent with the intended purpose, a court generally applies either “controlling weight" or “great weight" deference. DaimlerChrysler v. LIRC,
2007 WI 15,
299 Wis. 2d 1,
727 N.W.2d 311,
05-0544. But see Tetra Tech EC, Inc. v. DOR,
2018 WI 75,
382 Wis. 2d 496,
914 N.W.2d 21,
15-2019.
227.29
227.29
Agency review of rules and enactments. 227.29(1)(1)
By March 31 of each odd-numbered year, each agency with any rules published in the code shall submit a report to the joint committee for review of administrative rules listing all of the following rules promulgated or otherwise administered by that agency:
227.29(1)(a)
(a) Unauthorized rules, as defined in s.
227.26 (4) (a), together with a description of the legislation that eliminated the agency's authority to promulgate any such rule.
227.29(1)(b)
(b) Rules for which the authority to promulgate has been restricted, together with a description of the legislation that restricted that authority.
227.29(1)(c)
(c) Rules that are obsolete or that have been rendered unnecessary, together with a description of why those rules are obsolete or have been rendered unnecessary.
227.29(1)(d)
(d) Rules that are duplicative of, superseded by, or in conflict with another rule, a state statute, a federal statute or regulation, or a ruling of a court of competent jurisdiction, together with a citation to or the text of any such statute, regulation, or ruling.
227.29(1)(e)
(e) Rules that the agency determines are economically burdensome.
227.29(2)
(2) The report under sub.
(1) shall also include all of the following:
227.29(2)(a)
(a) A description of the agency's actions, if any, to address each rule listed in the report. If the agency has not taken any action to address a rule listed in the report, the agency shall include an explanation for not taking action.
227.29(2)(b)
(b) A description of the status of each rule listed in the previous year's report not otherwise listed.
227.29(3)
(3) If an agency identifies an unauthorized rule under sub.
(1) (a) and is not otherwise in the process of promulgating a rule that repeals the unauthorized rule, the agency shall, within 30 days after the agency submits the report, submit a petition to the legislative council staff under s.
227.26 (4) (b) 1. to repeal the unauthorized rule if the agency has not previously done so.
227.29(4)(a)(a) In this subsection, “enactment" means an act or a portion of an act that is required to be published under s.
35.095 (3) (a).
227.29(4)(b)
(b) Each agency shall review enactments to determine whether any part of an enactment does any of the following:
227.29(4)(b)1.
1. Eliminates or restricts the agency's authority to promulgate any rules promulgated or otherwise administered by that agency.
227.29(4)(b)2.
2. Renders any rules promulgated or otherwise administered by that agency obsolete or unnecessary.
227.29(4)(b)3.
3. Renders, for any reason, any rules promulgated or otherwise administered by that agency not in conformity with or superseded by a state statute, including due to statutory numbering or terminology changes in the enactment.
227.29(4)(b)4.
4. Requires or otherwise necessitates rule making by the agency.
227.29(4)(c)
(c) If an agency determines that any consequence specified in par.
(b) 1. to
4. results from an enactment or part of an enactment, within 6 months after the applicable effective date for the enactment or part of the enactment, the agency shall do one or more of the following, as applicable, to address the consequence identified by the agency and notify the joint committee for review of administrative rules of its action:
227.29(4)(c)1.
1. Submit a statement of the scope of a proposed rule under s.
227.135 (2), unless the enactment requires otherwise or unless the agency submits a notice to the committee explaining why it is unable to submit the statement of scope within that time period and an estimate of when the agency plans to submit the statement of scope.
227.29(4)(c)3.
3. In the case of a consequence specified under par.
(b) 3. that can be addressed by the legislative reference bureau using its authority under s.
13.92 (4) (b), submit a request to the legislative reference bureau to use that authority.
227.29 History
History: 2017 a. 108.
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 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 and to the agency.
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.
227.26.
227.30 History
History: 2003 a. 145;
2005 a. 249.
