227.26 Legislative review after promulgation; joint committee for review of administrative rules.

(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).

(2) Review of rules by committee.

(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.

(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.

(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.

(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).

(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.

(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.

(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:

1. An explanation of the issue regarding the suspended rule and the factual situation out of which the issue arose.

2. Arguments presented for and against the suspension action at the public hearing held under par. (c).

3. A statement of the action taken by the committee regarding the rule.

4. A statement and analysis of the grounds upon which the committee relies for suspending the rule.

(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.

(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.

(im) Multiple suspensions. Notwithstanding pars. (i) and (j), the committee may act to suspend a rule as provided under this subsection multiple times.

(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).

(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.

(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.

(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.

(4) Repeal of unauthorized rules.

(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.

(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:

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.

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.

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:

a. Approve the agency's petition if the committee determines that the proposed rule would repeal an unauthorized rule.

b. Deny the agency's petition.

c. Request that the agency make changes to the proposed rule and resubmit the petition and proposed rule under subd. 1.

4. The committee shall inform the agency in writing of its decision as to the petition.

(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.

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

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).

A collective bargaining agreement between the regents and the teaching assistants association is not subject to review by the committee. 59 Atty. Gen. 200.

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.

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.

Legislative committee review of administrative rules in Wisconsin. Bunn and Gallagher. 1977 WLR 935.