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from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed.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 Association of State Prosecutors v. WERC, 2018 WI 17, 380 Wis. 2d 1, 907 N.W.2d 425, 15-2224.

Under ss. 227.10 (2m) and 227.11 (2) (a), created by 2011 Wis. Act 21, an agency must have explicit authority to impose license and permit conditions and must have explicit authority for rulemaking. Act 21 makes clear that permit conditions and rulemaking may no longer be premised on implied agency authority. OAG 1-16

Sub. (2) (a) clearly disallows rulemaking based on broad statements of policy or duty. Although sub. (2) (a) only speaks to rulemaking, it follows that an agency is prohibited from conditioning a permit based on broad statements of policy or duty. OAG 1-16.

The attorney general applied a 3-step analytical inquiry to determine whether a rule “contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in” a statute, in violation of sub. (2) (a) 3.: 1) examine whether both a rule and a statute contain a “specific standard, requirement, or threshold” governing the same subject matter conduct; 2) compare the two standards, requirements, or thresholds to determine if the rule is “more restrictive” than the statute; 3) if the rule is more restrictive than the statute, evaluate whether the rule is otherwise “explicitly permitted by statute or by a rule,” as provided under sub. (2m). If the rule is more restrictive than the statute, and not otherwise explicitly permitted, the rule may not be enforced or administered. OAG 4-17.

Despite its procedurally lawful promulgation in the past, in light of changes to this section and s. 227.10 by 2011 Act 21, a rule may not be prospectively enforced or administered if it contains a “standard, requirement, or threshold” that is more restrictive than the relevant statute. OAG 4-17.