Wisconsin Statutes & Annotations
Chapter 227 - Administrative procedure and review.
227.11 - Agency rule-making authority.

227.11 Agency rule-making authority.
(1) Except as expressly provided, this chapter does not confer rule-making authority upon or augment the rule-making authority of any agency.
(2) Rule-making authority is expressly conferred on an agency as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
(b) Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.
(c) Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule.
(d) An agency may promulgate rules implementing or interpreting a statute that it will enforce or administer after publication of the statute but prior to the statute's effective date. A rule promulgated under this paragraph may not take effect prior to the effective date of the statute that it implements or interprets.
(e) An agency may not inform a member of the public in writing that a rule is or will be in effect unless the rule has been filed under s. 227.20 or unless the member of the public requests that information.
(3)
(a) A plan that is submitted to the federal government for the purpose of complying with a requirement of federal law does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. No agency may agree to promulgate a rule as a component of a compliance plan unless the agency has explicit statutory authority to promulgate the rule at the time the compliance plan is submitted.
(b) A settlement agreement, consent decree, or court order does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. No agency may agree to promulgate a rule as a term in any settlement agreement, consent decree, or stipulated order of a court unless the agency has explicit statutory authority to promulgate the rule at the time the settlement agreement, consent decree, or stipulated order of a court is executed.
History: 1985 a. 182; 1991 a. 209; 2011 a. 21; 2013 a. 125, 136, 210, 277, 278, 295, 320, 332, 361, 363; 2017 a. 369.
To expressly authorize a rule, the enabling statute need not spell out every detail of the rule. If it did, no rule would be necessary. Accordingly, whether the exact words used in an administrative rule appear in the statute is not the question. This principle has been characterized in the case law as the “elemental approach." Under the elemental approach, the reviewing court should identify the elements of the enabling statute and match the rule against those elements. If the rule matches the statutory elements, then the statute expressly authorizes the rule. Wisconsin Ass'n of State Prosecutors v. WERC, 2018 WI 17, 380 Wis. 2d 1, 907 N.W.2d 425, 15-2224.
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.
Sub. (2) (a) 2. does not alter explicit grants of rulemaking authority, regardless of whether the rulemaking provision in which the authority is granted could be characterized as broad or “general.” OAG 4-20.
The plain language of sub. (2) (a) 3. does not alter explicit grants of rulemaking authority to prescribe standards. The fact that the legislature mandates a specific standard in one statute does not, in itself, alter the agency's ability to promulgate, enforce, or administer a different standard enacted pursuant to a second statutory source of rulemaking authority. This holds true even when the second standard could be characterized as “more restrictive” than the first. OAG 4-20.
Making “Explicit Authority" Explicit: Deciphering Wis. Act 21's Prescriptions for Agency Rulemaking Authority. Koschnick. 2019 WLR 993.

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