Chapter 227

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) (6m) 

227.114(6m)(a) (a) Notwithstanding sub. (1), in this subsection, “small business” does not include an entity, as defined in s. 48.685 (1) (b) or 50.065 (1) (c).

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) (8) This section does not apply to:

227.114(8)(a) (a) Rules promulgated under s. 227.24.

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.

227.114 History History: 1985 a. 182; 1995 a. 27 s. 9116 (5); 1999 a. 9; 2003 a. 145; 2005 a. 249; 2007 a. 20; 2011 a. 32, 46.

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)5. 5. Housing costs, as defined in s. 16.301 (3) (a) and (b).

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) (c)

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 History History: 1995 a. 308; 2003 a. 33; 2005 a. 249; 2011 a. 32; 2017 a. 68.

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) (6) 

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.

227.116 History History: 1985 a. 182, 332; 1993 a. 52; 1995 a. 27; 1997 a. 27; 2005 a. 249; 2011 a. 32; 2017 a. 364.

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.

227.12 History History: 1985 a. 182; 2011 a. 68; 2017 a. 57.

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)(a) (a) A description of the objective of the rule.

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)(c) (c) The statutory authority for the rule.

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 History History: 1995 a. 106; 2003 a. 118, 145; 2005 a. 249; 2007 a. 20; 2011 a. 21; 2013 a. 20, 165; 2017 a. 39, 57, 108.

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

227.135 Annotation Practice Tips: Finding Administrative Intent in the Wisconsin Administrative Register. Sefarbi. Wis. Law. Apr. 2003.