Chapter 227

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(5)(g)1. 1. To indefinitely postpone the bill.

227.19(5)(g)2. 2. To nonconcur in the bill.

227.19(5)(g)3. 3. Against ordering the bill engrossed.

227.19(5)(g)4. 4. Against ordering the bill to a 3rd reading.

227.19(5)(g)5. 5. Against passage.

227.19(5)(g)6. 6. Against concurrence.

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 History History: 1985 a. 182; 1987 a. 253; 1987 a. 403 s. 256; 1989 a. 175; 2001 a. 87; 2003 a. 118, 277; 2005 a. 249; 2007 a. 20, 180; 2011 a. 21, 32, 46; 2013 a. 20; 2013 a. 165 s. 115; 2017 a. 57, 68.

227.19 Annotation Discussing rule-making procedure. Wisconsin State Telephone Ass’n v. PSC, 105 Wis. 2d 601, 314 N.W.2d 873 (Ct. App. 1981).

227.19 Annotation Post-promulgation rule suspension under s. 227.26 (2) (d) does not violate the separation of powers doctrine. Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992). See also Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, 19-0614.

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)(c) (c) That all of the rule-making procedures required by this chapter were complied with, except as provided in s. 186.118 (2) (c) or (3) (b) 3.

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 History History: 1985 a. 182; 1993 a. 214; 2005 a. 249; 2007 a. 20; 2013 a. 20, 277.

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) (2) 

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 History History: 1985 a. 182; 1987 a. 403; 2001 a. 65; 2005 a. 249; 2007 a. 20, 96, 180; 2013 a. 20; 2015 a. 196; 2021 a. 246.

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.

227.22 History History: 1985 a. 182; 1985 a. 332 s. 253; 2003 a. 145; 2005 a. 249; 2007 a. 20; 2013 a. 20, 172.

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) (1) Promulgation.

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)(b) (b) An agency acting under s. 186.235 (21), 215.02 (18) or 220.04 (8) may promulgate a rule without complying with the notice, hearing and publication procedures under this chapter.

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) (2) Extension.

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 History History: 1985 a. 182 ss. 6, 46, 55 (1), 57; 1985 a. 332 s. 253; 1987 a. 403; 1989 a. 31; 1995 a. 151; 1997 a. 185; 2003 a. 145; 2005 a. 249; 2007 a. 20; 2011 a. 21, 32, 46; 2013 a. 20, 165; 2017 a. 57, 364.

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.