Chapter 227

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may not file an emergency rule with the legislative reference bureau as provided in s. 227.20 and an emergency rule may not be published until the governor approves the emergency rule in writing.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.

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.

227.25 History History: 1985 a. 182; 2005 a. 249; 2007 a. 20.

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) (2) Review of rules by committee.

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) (4) Repeal of unauthorized rules.

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.b. b. Deny the agency’s petition.

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 History History: 1985 a. 182 ss. 1, 3, 50; 1987 a. 186; 2005 a. 249; 2017 a. 108, 369.

227.26 Annotation Rule suspension under sub. (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.

227.26 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(1) (1) In construing rules, ss. 990.001, 990.01, 990.03 (1), (2) and (4), 990.04 and 990.06 apply in the same manner in which they apply to statutes, except that ss. 990.001 and 990.01 do not apply if the construction would produce a result that is inconsistent with the manifest intent of the agency.

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(2)(c) (c) If the agency determines that there is no rule as described under sub. (1) (a), (b), (c), (d), or (e), a statement of that determination.

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) (4) 

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.