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
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Stated otherwise, agencies have no inherent constitutional authority to make rules, and their rule-making powers can be repealed by the legislature.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
Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.
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.
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)
Filing a certified copy of a rule with the legislative reference bureau creates a presumption of all of the following:
That the rule was duly promulgated by the agency.
That the rule was filed and made available for public inspection on the date and time endorsed on it.
That the text of the certified copy of the rule is the text as promulgated by the agency.
See s. 902.03
for provision for judicial notice of administrative rules.
Guidelines promulgated outside the context of one particular contested case do not qualify for exception to the requirement that all rules must be filed under s. 227.023 [now s. 227.20]. Here, failure to file the guideline as a rule did not deprive the department of the authority to decide contested cases dealing with pregnancy leaves under the sex discrimination statute. Wisconsin Telephone Co. v. Department of Industry, Labor, and Human Relations, 228 NW 2d 649, 68 Wis. 2d 345
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 Association v. Public Service Commission of Wisconsin, 2015 WI 63
, 363 Wis. 2d 430
, 867 N.W.2d 364
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
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.
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 offices of the agency and the legislative reference bureau.
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
A rule promulgated jointly by 2 or more agencies need not be published in more than one place in the code.
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.
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.
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.
A rule is effective on the first day of the month commencing after the date of publication unless one of the following occurs:
The statute under which the rule was promulgated prescribes a different effective date for the rule.
A later date is prescribed by the agency in a statement filed with the rule.
The rule is promulgated under s. 227.24
, in which case it becomes effective at the time prescribed in that section.
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.
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.
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:
Its promulgation need not be preceded by notice and public hearing.
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.
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.
History: 1985 a. 182
See also ch. Ins 7
, Wis. adm. code.
Emergency rules; exemptions. 227.24(1)(a)(a)
An agency may, except as provided in s. 227.136 (1)
, promulgate a rule as an emergency rule without complying with the notice, hearing, and publication requirements under this chapter if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures.
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.
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.
An agency that promulgates a rule under this subsection shall do all of the following:
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.
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.
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.
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.
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.
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.
In making the request for an extension, the agency shall provide the committee with the following:
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.
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)
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.
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)
(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 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 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:
Explain how the agency has responded to comments received from small businesses regarding the emergency rule.
Verify that the emergency rule does not conflict with, overlap, or duplicate other rules or federal regulations.
(4) Public hearing.
Notwithstanding sub. (1) (a)
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.
The effectiveness of an emergency rule may not be extended beyond the initial effective period by simply refiling it. 62 Atty Gen. 305.
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.
The legislative reference bureau shall, upon request, furnish an agency with advice and assistance on the form and mechanics of rule drafting.
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.
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.
Legislative review after promulgation; joint committee for review of administrative rules. 227.26(1)(1)
In this section, “rule" means all or any part of a rule which has taken effect as provided under s. 227.22 (2)
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.
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.
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.
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)
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.
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.
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:
An explanation of the issue regarding the suspended rule and the factual situation out of which the issue arose.
Arguments presented for and against the suspension action at the public hearing held under par. (c)
A statement of the action taken by the committee regarding the rule.
A statement and analysis of the grounds upon which the committee relies for suspending the rule.
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.
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.
Notwithstanding pars. (i)
, the committee may act to suspend a rule as provided under this subsection multiple times.