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 Association of State Prosecutors v. WERC, 2018 WI 17
, 380 Wis. 2d 1
, 907 N.W.2d 425
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Stated otherwise, agencies have no inherent constitutional authority to make rules, and their rule-making powers can be repealed by the legislature.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
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
Under ss. 227.10 (2m) and 227.11 (2) (a), created by 2011 Wis. Act 21
, an agency must have explicit authority to impose license and permit conditions and must have explicit authority for rulemaking. Act 21 makes clear that permit conditions and rulemaking may no longer be premised on implied agency authority. OAG 1-16
Sub. (2) (a) clearly disallows rulemaking based on broad statements of policy or duty. Although sub. (2) (a) only speaks to rulemaking, it follows that an agency is prohibited from conditioning a permit based on broad statements of policy or duty. OAG 1-16
The attorney general applied a 3-step analytical inquiry to determine whether a rule “contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in” a statute, in violation of sub. (2) (a) 3.: 1) examine whether both a rule and a statute contain a “specific standard, requirement, or threshold” governing the same subject matter conduct; 2) compare the two standards, requirements, or thresholds to determine if the rule is “more restrictive” than the statute; 3) if the rule is more restrictive than the statute, evaluate whether the rule is otherwise “explicitly permitted by statute or by a rule,” as provided under sub. (2m). If the rule is more restrictive than the statute, and not otherwise explicitly permitted, the rule may not be enforced or administered. OAG 4-17
Despite its procedurally lawful promulgation in the past, in light of changes to this section and s. 227.10 by 2011 Act 21
, a rule may not be prospectively enforced or administered if it contains a “standard, requirement, or threshold” that is more restrictive than the relevant statute. OAG 4-17
Rule-making authority of certain agencies. 227.111(1)(1)
In this section, “restricted agency” means an affiliated credentialing board, as defined in s. 15.01 (1g)
, a board, as defined in s. 15.01 (1r)
, a commission, as defined in s. 15.01 (2)
, or an examining board, as defined in s. 15.01 (7)
, that has not taken any action under this subchapter with respect to the promulgation of a rule in 10 years or more.
Notwithstanding ss. 227.10
and any other provision authorizing or requiring a restricted agency to promulgate rules, a restricted agency may not take any action with respect to the promulgation of a rule unless a subsequent law specifically authorizes such action.
History: 2017 a. 158
Guidance documents. 227.112(1)(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.
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)
An agency may hold a public comment period shorter than 21 days with the approval of the governor.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
History: 2017 a. 369
In Service Employees International Union (SEIU), Local 1 v. Vos
, 2020 WI 67
, the Wisconsin Supreme Court held that this section is facially unconstitutional.
Incorporation of local, comprehensive planning goals.
Each agency, where applicable and consistent with the laws that it administers, is encouraged to design the rules promulgated by the agency to reflect a balance between the mission of the agency and the goals specified in s. 1.13 (2)
History: 1999 a. 9
Rule making; considerations for small business. 227.114(1)(1)
In this section, “small business" means a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
When an agency proposes or revises a rule that may have an effect on small businesses, the agency shall consider each of the following methods for reducing the impact of the rule on small businesses:
The establishment of less stringent compliance or reporting requirements for small businesses.
The establishment of less stringent schedules or deadlines for compliance or reporting requirements for small businesses.
The consolidation or simplification of compliance or reporting requirements for small businesses.
The establishment of performance standards for small businesses to replace design or operational standards required in the rule.
The exemption of small businesses from any or all requirements of the rule.
The agency shall incorporate into the proposed rule any of the methods specified under sub. (2)
which it finds to be feasible, unless doing so would be contrary to the statutory objectives which are the basis for the proposed rule.
In addition to the requirements under s. 227.17
, the agency shall provide an opportunity for small businesses to participate in the rule-making process, using one or more of the following methods:
The inclusion in the notice under s. 227.17
of a statement that the rule may have an impact on small businesses.
The direct notification of any small business that may be affected by the rule.
The conduct of public hearings concerning the impact of the rule on small businesses.
The use of special hearing procedures to reduce the cost or complexity of participation in the rule-making process by small businesses.
When an agency, under s. 227.20 (1)
, files with the legislative reference bureau a rule that is subject to this section, the agency shall include with the rule a summary of the analysis prepared under s. 227.19 (3) (e)
and a summary of the comments of the legislative standing committees, if any. If, under s. 227.19 (3m)
, the rule does not require the analysis under s. 227.19 (3) (e)
, the agency shall include with the rule a statement of the reason for the small business regulatory review board's determination that the rule will not have a significant economic impact on a substantial number of small businesses. The legislative reference bureau shall publish the summaries or the statement in the register with the rule.
A small business may commence an action against an agency for injunctive relief to prevent the imposition of a penalty if the small business is subject to the penalty as the result of any of the following:
The small business acted or failed to act due to the failure by the agency's employee, officer, or agent with regulatory responsibility for that legal requirement to respond to a specific question in a reasonable time.
The small business acted or failed to act in response to inaccurate advice given to the small business by the agency's employee, officer, or agent with regulatory responsibility for that legal requirement.
The small business may commence the action in the circuit court for the county where the property affected is located or, if no property is affected, in the circuit court for the county where the dispute arose.
The circuit court may issue an order enjoining the imposition of the penalty if the court determines that par. (b) 1.
Each agency shall designate at least one employee to serve as the small business regulatory coordinator for the agency, and shall publicize that employee's electronic mail address and telephone number. The small business regulatory coordinator shall act as a contact person for small business regulatory issues for the agency.
Rules that do not affect small businesses directly, including, but not limited to, rules relating to county or municipal administration of state and federal programs.
Review of rules affecting housing. 227.115(1)(1)
In this section, “state housing strategy plan" means the plan developed under s. 16.302
Analysis of rules affecting housing. 227.115(2)(a)
If a proposed rule may increase or decrease, either directly or indirectly, the cost of the development, construction, financing, purchasing, sale, ownership, or availability of housing in this state, the agency promulgating the proposed rule shall prepare a housing impact analysis for the proposed rule before it is submitted to the legislative council staff under s. 227.15
. The agency may request any information from other state agencies, local governments, or individuals or organizations that is reasonably necessary for the agency to prepare the analysis.
On the same day that the agency submits the housing impact analysis to the legislative council staff under s. 227.15 (1)
, the agency shall also submit that analysis to the department of administration, to the governor, and to the chief clerks of each house of the legislature, who shall distribute the analysis to the presiding officers of their respective houses, to the chairpersons of the appropriate standing committees of their respective houses, as designated by those presiding officers, and to the cochairpersons of the joint committee for review of administrative rules. If a proposed rule is modified after the housing impact analysis is submitted under this paragraph so that the housing impact of the proposed rule is significantly changed, the agency shall prepare a revised housing impact analysis for the proposed rule as modified. A revised housing impact analysis shall be prepared and submitted in the same manner as an original housing impact analysis is prepared and submitted.
Findings to be contained in housing impact analysis. 227.115(3)(a)(a)
A housing impact analysis shall contain information about the effect of the proposed rule on housing in this state, including information on the effect of the proposed rule on all of the following:
The policies, strategies and recommendations of the state housing strategy plan.
The cost of developing, constructing, rehabilitating, improving, maintaining, or owning single-family or multifamily dwellings.
The purchase price of new homes or the fair market value of existing homes.
The cost and availability of financing to purchase or develop housing.
The density, location, setback, size, or height of development on a lot, parcel, land division, or subdivision.
A housing impact analysis shall analyze the relative impact of the effects of the proposed rule on low- and moderate-income households.
Except as provided in subd. 2.
, a housing impact analysis shall provide reasonable estimates of the information under pars. (a)
expressed as dollar figures and shall include descriptions of the immediate effect and, if ascertainable, the long-term effect. The agency shall include a brief summary or worksheet of computations used in determining any such dollar figures.
If, after careful consideration, the agency determines that it is not possible to make an estimate expressed as dollar figures as provided in subd. 1.
, the analysis shall instead contain a statement to that effect setting forth the reasons for that determination.
Except as otherwise specified in par. (a)
, a housing impact analysis shall be prepared on the basis of a median-priced single-family residence but may include estimates for larger developments as an analysis of the long-term effect of the proposed rule.
This section does not apply to emergency rules promulgated under s. 227.24
Sub. (2) requires a report on the effect of a proposed rule on housing if the “rule directly or substantially affects the development, construction, cost, or availability of housing in this state. . ." The use of the phrase “directly or substantially" demonstrates that not just any effect will trigger the housing impact report requirement. A housing impact report is not required simply because the subject matter of a proposed rule relates to housing, or because the rule tangentially affects housing in some way. Wisconsin Realtors Association v. Public Service Commission of Wisconsin, 2015 WI 63
, 363 Wis. 2d 430
, 867 N.W.2d 364
The absence of an explicit, on-the-record determination regarding whether a housing impact report is required is not dispositive and does not mean rules were promulgated without compliance with statutory rule-making procedures. Wisconsin Realtors Association v. Public Service Commission of Wisconsin, 2015 WI 63
, 363 Wis. 2d 430
, 867 N.W.2d 364
The above annotated materials cite to the pre-2017 Wisconsin Act 68
version of s. 227.115.
Rules to include time period. 227.116(1g)(1g)
In this section, “permit" means any approval of an agency required as a condition of operating a business in this state.
Each proposed rule submitted to the legislative council 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.
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.
do not apply to a rule if the rule, or a law under which the rule was promulgated, effective prior to November 17, 1983, contains a specification of a time period for review and determination on a permit application.
If an agency fails to review and make a determination on a permit application within the time period specified in a rule or law, for each such failure the agency shall prepare a report and submit it to the department of safety and professional services within 5 business days of the last day of the time period specified, setting forth all of the following:
The name of the person who submitted the permit application and the business activity for which the permit is required.
Why the review and determination were not completed within the specified time period and a specification of the revised time period within which the review and determination will be completed.