2023 Wisconsin Statutes & Annotations › Chapter 227 - Administrative procedure and review. › 227.19 - Legislative review prior to promulgation.

227.19
Legislative review prior to promulgation.
(1)
Statement of purpose; rule-making powers.
(a)
Article IV of the constitution of this state vests in the legislature the power to make laws, and thereby to establish agencies and to designate agency functions, budgets and purposes. Article V of the constitution of this state charges the executive with the responsibility to expedite all measures which may be resolved upon by the legislature.
(b)
The legislature recognizes the need for efficient administration of public policy. In creating agencies and designating their functions and purposes, the legislature may delegate rule-making authority to these agencies to facilitate administration of legislative policy. The delegation of rule-making authority is intended to eliminate the necessity of establishing every administrative aspect of general public policy by legislation. In so doing, however, the legislature reserves to itself:
1.
The right to retract any delegation of rule-making authority.
2.
The right to establish any aspect of general policy by legislation, notwithstanding any delegation of rule-making authority.
3.
The right and responsibility to designate the method for rule promulgation, review and modification.
4.
The right to delay or suspend the implementation of any rule or proposed rule while under review by the legislature.
(2)
Notification of legislature. An agency shall submit a notice to the chief clerk of each house of the legislature when a proposed rule is in final draft form. The notice shall be submitted in triplicate and shall be accompanied by a report in the form specified under sub. (3). A notice received under this subsection after the last day of the legislature's final general-business floorperiod in the biennial session as established in the joint resolution required under s. 13.02 (3) shall be considered received on the first day of the next regular session of the legislature, unless the presiding officers of both houses direct referral of the notice and report under this subsection before that day. The presiding officer of each house of the legislature shall, within 10 working days following the day on which the notice and report are received, direct the appropriate chief clerk to refer the notice and report to one standing committee. The agency shall submit to the legislative reference bureau for publication in the register, in an electronic format approved by the legislative reference bureau, a statement that a proposed rule has been submitted to the chief clerk of each house of the legislature. The agency shall also include in the statement the date of approval of the proposed rule by the governor under s. 227.185. Each chief clerk shall enter a similar statement in the journal of his or her house.
(3)
Form of report. The report required under sub. (2) shall be in writing and shall include the proposed rule in the form specified in s. 227.14 (1); the material specified in s. 227.14 (2), (3), and (4); including any statement, suggested changes, or other material submitted to the agency by the small business regulatory review board; a copy of any economic impact analysis prepared by the agency under s. 227.137 (2); a copy of any revised economic impact analysis prepared by the agency under s. 227.137 (4); a copy of any independent economic impact analysis prepared under s. 227.137 (4m); a copy of any energy impact report received from the public service commission under s. 227.117 (2); and a copy of any recommendations of the legislative council staff. The report shall also include all of the following:
(a)
A detailed statement explaining the basis and purpose of the proposed rule, including how the proposed rule advances relevant statutory goals or purposes.
(b)
A summary of public comments to the proposed rule and the agency's response to those comments, and an explanation of any modification made in the proposed rule as a result of public comments or testimony received at a public hearing.
(c)
A list of the persons who appeared or registered for or against the proposed rule at a public hearing held under s. 227.136 or 227.16.
(cm)
Any changes to the analysis prepared under s. 227.14 (2) or the fiscal estimate prepared under s. 227.14 (4).
(d)
A response to the legislative council staff recommendations under s. 227.15 indicating:
1.
Acceptance of the recommendations in whole or in part.
2.
Rejection of the recommendations in whole or in part.
3.
The specific reason for rejecting any recommendation.
(e)
Except as provided under sub. (3m), for all proposed rules that will have an effect on small businesses, as defined under s. 227.114 (1), a final regulatory flexibility analysis, which shall contain as much information about the following as the agency can feasibly obtain and analyze with its existing staff and resources:
1.
The agency's reason for including or failing to include in the proposed rule any of the methods specified under s. 227.114 (2) for reducing its impact on small businesses.
2.
A summary of issues raised by small businesses during the hearings on the proposed rule, any changes in the proposed rule as a result of alternatives suggested by small businesses and the reasons for rejecting any alternatives suggested by small businesses.
3.
The nature of any reports and the estimated cost of their preparation by small businesses that must comply with the rule.
4.
The nature and estimated cost of other measures and investments that will be required of small businesses in complying with the rule.
5.
The additional cost, if any, to the agency of administering or enforcing a rule which includes any of the methods specified under s. 227.114 (2).
6.
The impact on public health, safety and welfare, if any, caused by including in the rule any of the methods specified under s. 227.114 (2).
(f)
If an energy impact report regarding the proposed rule was submitted with the report required under sub. (2), an explanation of the changes, if any, that were made in the proposed rule in response to that report.
(g)
Any housing impact analysis prepared under s. 227.115 (2) (a) and any revised housing impact analysis prepared under s. 227.115 (2) (b).
(h)
A response to any report prepared by the small business regulatory review board under s. 227.14 (2g).
(3m)
Analysis not required. The final regulatory flexibility analysis specified under sub. (3) (e) is not required for any rule if the small business regulatory review board determines that the rule will not have a significant economic impact on a substantial number of small businesses.
(4)
Committee review.
(a)
Notice of referral. Upon receipt of notice that a proposed rule has been referred to a committee under sub. (2), the chairperson or chairpersons of the committee shall notify, in writing, each committee member of the referral.
(am)
Committee meeting. A committee may be convened upon the call of its chairperson or cochairpersons to review a proposed rule. A committee may meet separately or jointly with the other committee to which the notice and report were referred. A committee may hold a public hearing to review a proposed rule.
(b)
Committee review period.
1.
Except as otherwise provided in this paragraph, the committee review period for each committee extends for 30 days after referral of the proposed rule to the committee under sub. (2). If the chairperson or the cochairpersons of a committee take either of the following actions within the 30-day period, the committee review period for that committee is continued for 30 days from the date on which the first 30-day review period would have expired:
a.
Request in writing that the agency meet with the committee to review the proposed rule.
b.
Publish or post notice that the committee will hold a meeting or hearing to review the proposed rule and immediately send a copy of the notice to the agency.
1m.
Except as provided under subd. 5., if a notice and report received under sub. (2) after the last day of the legislature's final general-business floorperiod as specified in sub. (2) is referred for committee review before the first day of the next regular session of the legislature, the committee review period for each committee to which the proposed rule is referred extends to the day specified under s. 13.02 (1) for the next legislature to convene.
2.
If a committee, by a majority vote of a quorum of the committee, requests modifications in a proposed rule, and the agency, in writing, agrees to consider making modifications, the review period for both committees to which the proposed rule is referred is extended either to the 10th working day following receipt by those committees of the modified proposed rule or a written statement to those committees that the agency will not make the modifications or to the expiration of the review period under subd. 1. or, if applicable, subd. 1m., whichever is later. There is no limit either on the number of modification agreements that may be entered into or on the time within which modifications may be made.
2m.
If a committee requests in writing that the public service 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 commission shall prepare an energy impact report in the manner provided under s. 227.117 (1). The commission shall submit a copy of the report to the committee and to the agency that proposed the rule within 30 days after the written request is submitted to the commission. The review period for both committees to which the proposed rule is referred is extended to the 10th working day following receipt by those committees of the report, to the expiration of the review period under subd. 1. or, if applicable, subd. 1m., or to the expiration of the review period under subd. 2., whichever is later.
3.
An agency may, on its own initiative, submit a germane modification to a proposed rule to a committee during its review period. If a germane modification is submitted within the final 10 days of a committee review period under subd. 1., the review period for both committees to which the proposed rule is referred is extended for 10 working days. If a germane modification is submitted to a committee after the committee in the other house has concluded its jurisdiction over the proposed rule, the jurisdiction of the committee of the other house is revived for 10 working days. In this subdivision, an agency's proposal to delete part of a proposed rule under committee review shall be treated as a germane modification of the proposed rule.
3m.
An agency may, during the committee review period, reconsider its action by recalling the proposed rule from the chief clerk of each house of the legislature. If the agency decides to continue the rule-making process with regard to the proposed rule, the agency shall resubmit the proposed rule, either in its recalled form or with one or more germane modifications, to the chief clerk in each house of the legislature as provided in sub. (2) and the committee review period under subd. 1. or, if applicable, subd. 1m. shall begin again.
4.
An agency may modify a proposed rule following the committee review period if the modification is germane to the subject matter of the proposed rule. If a germane modification is made, the agency shall recall the proposed rule from the chief clerk of each house of the legislature. The proposed rule, with the germane modification, shall be resubmitted to the presiding officer in each house of the legislature as provided in sub. (2) and the committee review period shall begin again. Following the committee review period, an agency may not make any modification that is not germane to the subject matter of the proposed rule. In this subdivision, an agency's proposal to delete part of a proposed rule under committee review shall be treated as a germane modification of the proposed rule.
5.
If a committee in one house votes to object to a proposed rule or to a part of the proposed rule under par. (d), the chairperson or cochairpersons of the committee shall immediately notify the chairperson or cochairpersons of the committee in the other house to which the proposed rule was referred. Upon receipt of the notice, the review period for the committee in the other house immediately ceases and no further action on the proposed rule or part of the proposed rule objected to may be taken under this paragraph by that committee, but the committee may proceed under par. (d) to object to the proposed rule or part of the proposed rule.
6.
If a committee has not concluded its jurisdiction over a proposed rule or a part of a proposed rule before the day specified under s. 13.02 (1) for the next legislature to convene, that jurisdiction immediately ceases and, within 10 working days after that date, the presiding officer of the appropriate house shall refer the proposed rule or part of the proposed rule to the appropriate standing committee of the next legislature as provided under sub. (2). If a committee review period is interrupted by the loss of jurisdiction under this subdivision, a new committee review period as provided in subd. 1. shall begin for the committee to which the proposed rule or part of the proposed rule is referred under this subdivision beginning on the date of referral under this subdivision.
(c)
Waiver of committee review. A committee may waive its jurisdiction over a proposed rule prior to the expiration of the committee review period by adopting, by a majority vote of a quorum of the committee, a motion waiving the committee's jurisdiction.
(d)
Committee action. A committee, by a majority vote of a quorum of the committee during the applicable review period under par. (b), may object to a proposed rule or to a part of a proposed rule for one or more of the following reasons:
1.
An absence of statutory authority.
2.
An emergency relating to public health, safety or welfare.
3.
A failure to comply with legislative intent.
4.
A conflict with state law.
5.
A change in circumstances since enactment of the earliest law upon which the proposed rule is based.
6.
Arbitrariness and capriciousness, or imposition of an undue hardship.
7.
In the case of a proposed rule of the department of safety and professional services under s. 101.63 (1) establishing standards for the construction of a dwelling, as defined in s. 101.61 (1), the proposed rule would increase the cost of constructing or remodeling such a dwelling by more than $1,000. This subdivision applies notwithstanding that the purpose of the one- and 2-family dwelling code under s. 101.60 includes promoting interstate uniformity in construction standards. This subdivision does not apply to a proposed rule whose promulgation has been authorized under sub. (5) (fm).
(e)
Conclusion of committee jurisdiction. Subject to par. (b) 3., a committee's jurisdiction over a proposed rule is concluded when the committee objects to, approves, or waives its jurisdiction over the proposed rule or when the committee review period ends, whichever occurs first. When a committee's jurisdiction over a proposed rule is concluded, the committee shall report the proposed rule and any objection as provided in sub. (5) (a).
(5)
Joint committee for review of administrative rules.
(a)
Referral. When a committee's jurisdiction over a proposed rule is concluded as provided in sub. (4) (e), the committee shall report the proposed rule and any objection to the chief clerk of the appropriate house within 5 working days after that jurisdiction is concluded. The chief clerk shall refer the proposed rule and any objection to the joint committee for review of administrative rules within 5 working days after receiving the committee report.
(b)
Joint committee review period.
1.
Except as otherwise provided in this paragraph, the review period for the joint committee for review of administrative rules extends for 30 days after the last referral of a proposed rule and any objection to that committee, and during that review period that committee may take any action on the proposed rule in whole or in part permitted under this subsection. The joint committee for review of administrative rules shall meet and take action in executive session during that period with respect to any proposed rule or any part of a proposed rule to which a committee has objected and may meet and take action in executive session during that period with respect to any proposed rule or any part of a proposed rule to which no committee has objected, except that if the cochairpersons take either of the following actions within the 30-day period, the joint committee review period is continued for 30 days from the date on which the first 30-day review period would have expired:
a.
Request in writing that the agency meet with the joint committee for review of administrative rules to review the proposed rule.
b.
Publish or post notice that the joint committee for review of administrative rules will hold a meeting or hearing to review the proposed rule and immediately send a copy of the notice to the agency.
1m.
If a notice and report received under sub. (2) after the last day of the legislature's final general-business floorperiod as specified in sub. (2) is referred for review by the joint committee for review of administrative rules before the first day of the next regular session of the legislature, the review period for the joint committee for review of administrative rules extends to the day specified under s. 13.02 (1) for the next legislature to convene. During that review period, the joint committee for review of administrative rules may meet and take action in executive session and may take any action on the proposed rule in whole or in part permitted under this subsection. If the joint committee for review of administrative rules meets in executive session with respect to a proposed rule or part of a proposed rule to which a committee has objected, that joint committee shall take action as permitted under this subsection with respect to the committee's objection.
2.
If the joint committee for review of administrative rules, by a majority vote of a quorum of the committee, requests modifications in a proposed rule, and the agency, in writing, agrees to consider making modifications, the review period for the joint committee is extended either to the 10th working day following receipt by the joint committee of the modified proposed rule or a written statement to the joint committee that the agency will not make the modifications or to the expiration of the review period under subd. 1. or, if applicable, subd. 1m., whichever is later. There is no limit either on the number of modification agreements that may be entered into or on the time within which modifications may be made.
3.
The joint committee for review of administrative rules, by a majority vote of a quorum of the committee, may request the preparation of an independent economic impact analysis for a proposed rule, regardless of whether an independent economic impact analysis was prepared under s. 227.137 (4m). If the joint committee for review of administrative rules requests an independent economic impact analysis under this subdivision, the committee shall request approval by the committee on senate organization and the committee on assembly organization. If both the committee on senate organization and the committee on assembly organization approve the request, the joint committee for review of administrative rules shall notify the agency proposing the proposed rule and shall contract with a person that is not an agency to prepare the independent economic impact analysis, and the review period for the committee is extended to the 10th working day following receipt by the committee of the completed analysis. The person preparing the independent economic impact analysis shall comply with s. 227.137 (4m) (c) 1. to 3. Costs of completing an independent economic impact analysis shall be paid as follows:
a.
If the estimate in the independent economic impact analysis of total implementation and compliance costs under s. 227.137 (3) (b) 1. varies from the agency's estimate by 15 percent or more or varies from the agency's determination that there will be no implementation or compliance costs, the committee shall assess the agency that is proposing the proposed rule for the costs of completing the independent economic impact analysis.
b.
If the estimate in the independent economic impact analysis of total implementation and compliance costs under s. 227.137 (3) (b) 1. does not vary from the agency's estimate by 15 percent or more or is in accord with the agency's determination that there will be no implementation and compliance costs, the costs of completing the independent economic impact analysis shall be paid in equal parts from the appropriation accounts under s. 20.765 (1) (a) and (b).
c.
Notwithstanding subd. 3. a. and b., if the maximum potential obligation under the contract for completing the independent economic impact analysis exceeds $50,000, the joint committee for review of administrative rules shall submit the proposed contract to the joint committee on finance for the purpose of determining the funding source for the costs of completing the independent economic impact analysis, and the costs of completing the independent economic impact analysis shall be paid as provided by the joint committee on finance. If the joint committee on finance does not act to determine the funding source within 90 days, the costs of completing the independent economic impact analysis shall be paid as provided in subd. 3. a. and b.
4.
If the joint committee for review of administrative rules has not concluded its jurisdiction over a proposed rule or a part of a proposed rule before the day specified under s. 13.02 (1) for the next legislature to convene, that jurisdiction immediately ceases and, within 10 working days after that date, the presiding officer of the appropriate house shall refer the proposed rule or part of the proposed rule to the joint committee for review of administrative rules of the next legislature. If a committee review period is interrupted by the loss of jurisdiction under this subdivision, a new committee review period as provided in subd. 1. shall begin for the joint committee for review of administrative rules to which the proposed rule or part of the proposed rule is referred under this subdivision beginning on the date of referral under this subdivision.
(c)
Agency not to promulgate rule during joint committee review. An agency may not promulgate a proposed rule or a part of a proposed rule until the joint committee for review of administrative rules nonconcurs in the objection of the committee, concurs in the approval of the committee, otherwise approves the proposed rule or part of the proposed rule, or waives its jurisdiction over the proposed rule or part of the proposed rule under par. (d), until the expiration of the review period under par. (b) 1., if no committee has objected to the proposed rule or the part of the proposed rule, until a bill introduced under par. (e) fails to be enacted, or until a bill introduced under par. (em) is enacted. An agency may promulgate any part of a proposed rule to which no objection has been made.
(d)
Joint committee action. The joint committee for review of administrative rules may nonconcur in a committee's objection to a proposed rule or a part of a proposed rule, concur in a committee's approval of a proposed rule or a part of a proposed rule, otherwise approve a proposed rule or a part of a proposed rule, or waive its jurisdiction over a proposed rule or a part of a proposed rule by voting to nonconcur, concur, or approve, or to waive its jurisdiction, during the applicable review period under par. (b). If the joint committee for review of administrative rules objects to a proposed rule or a part of a proposed rule and invokes this paragraph, an agency may not promulgate the proposed rule or part of the proposed rule objected to until a bill introduced under par. (e) fails to be enacted. The joint committee for review of administrative rules may object to a proposed rule or a part of a proposed rule under this paragraph only for one or more of the reasons specified under sub. (4) (d).
(dm)
Indefinite objection; joint committee action. If the joint committee for review of administrative rules objects to a proposed rule or a part of a proposed rule and invokes this paragraph, the agency may not promulgate the proposed rule or part of the proposed rule objected to until a bill introduced under par. (em) is enacted. The joint committee for review of administrative rules may object to a proposed rule or a part of a proposed rule under this paragraph only for one or more of the reasons specified under sub. (4) (d). This paragraph does not apply to a proposed rule whose promulgation has been previously authorized under par. (fm).
(e)
Bills to prevent promulgation. When the joint committee for review of administrative rules objects to a proposed rule or a part of a proposed rule under par. (d) it shall, within 30 days of the date of the objection, meet and take executive action regarding the introduction, in each house of the legislature, of a bill to support the objection. The joint 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.
(em)
Indefinite objection; bill to authorize promulgation. If the joint committee for review of administrative rules objects to a proposed rule or a part of a proposed rule under par. (dm), any member of the legislature may introduce a bill to authorize promulgation of the proposed rule or part of the proposed rule. This paragraph does not apply to a proposed rule whose promulgation has been previously authorized under par. (fm).
(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.
(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.
(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:
1.
To indefinitely postpone the bill.
2.
To nonconcur in the bill.
3.
Against ordering the bill engrossed.
4.
Against ordering the bill to a 3rd reading.
5.
Against passage.
6.
Against concurrence.
(6)
Promulgation prevention or authorization procedure.
(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:
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.
2.
Arguments presented for and against the proposed rule at the executive session held under sub. (5) (b).
3.
A statement of the action taken by the joint committee for review of administrative rules regarding the proposed rule.
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.
(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.
(7)
Nonapplication. This section does not apply to rules promulgated under s. 227.24.
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.
Discussing rule-making procedure. Wisconsin State Telephone Ass'n v. PSC, 105 Wis. 2d 601, 314 N.W.2d 873 (Ct. App. 1981).
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.
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.
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.
Changing the Rules on Rulemaking. Sklansky. Wis. Law. Aug. 2011.