227.24 Emergency rules; exemptions.

(1) Promulgation.

(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.

(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.

(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.

(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.

(e) An agency that promulgates a rule under this subsection shall do all of the following:

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.

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.

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.

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.

(2) Extension.

(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.

(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.

(b) In making the request for an extension, the agency shall provide the committee with the following:

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.

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).

(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.

(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).

(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:

(a) Explain how the agency has responded to comments received from small businesses regarding the emergency rule.

(b) 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 (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.

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.

The effectiveness of an emergency rule may not be extended beyond the initial effective period by simply refiling it. 62 Atty Gen. 305.