What can rules contain?

Rules can deal with limited topics like the specific details on applying for a type of permit, or how a grant program is administered. Rules can also be broader in scope such as statewide minimum shoreland zoning standards, which also gives counties the option of establishing stronger regulations with the option for stronger regulations. Sometimes required programs can be expansive in nature, and may require several or many administrative rules. The Wisconsin Pollution Discharge Elimination System (WPDES)—the permitting system mandated by the Federal Clean Water Act that regulates point source discharges—is an example of a broad program with many regulatory parts that has many administrative rules associated with it.

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Who can direct the creation of rules?

The state legislature may direct a state agency to create a new (promulgate) administrative rule or revise an existing rule. Agencies may enact rules on their own initiative in order to interpret statutes, revise existing rules, or pass emergency rules to respond to an unanticipated situation. The legislature sometimes mandates specific rule-making authority when enacting a state statute or program. Rules are often promulgated or revised to comply with legislative directive, abide by changes in federal law or administrative rules or state law, and/or reflect increased technical knowledge that may require changes in standards or practices.

Municipalities, certain associations, or five or more persons can initiate rule making by petitioning the agency to draft a rule or revise or repeal an existing one. If the request is granted, normal rule making procedure follows.

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The administrative rule making process

Rule promulgations generally take at least about 6 months from start to finish, and may take much longer.  The purpose of the promulgation process is to ensure that the public and the legislature have an opportunity to participate in the rulemaking process and that all perspectives are considered in the development of a final regulation.  Rule promulgations may be for either permanent or emergency rules. An outline of the rule making process follows.

1. Agency submits a statement of scope for review by head of agency. This contains the rule’s objective, policy alternatives, affected entities, and compares existing or proposed federal regulation the rule would address. Department of Administration may require economic impact report
2. An agency advisory board discusses potential approaches and content of a draft rule. These advisory committees can be a combination of internal agency people, representatives of public and private entities.
3. A draft rule is put together. Public listening sessions can be held to gauge stakeholders or citizen perspective
4. The draft rule is submitted to the Joint Legislative Council (the study arm of the legislature) for review of technical items, such as clarity, adequacy of reference to related statutes, and style,
5. Generally, a Public hearing is held.
6. A final draft of the proposed rule is prepared, along with a report summarizing public comments and explanations of resulting modifications, and other required elements.
7. For DNR rules, the final draft rule is forwarded to the Natural Resources Board for approval. The Board may vote to send the rule back to the Department for more revisions or vote to send the rules forward to the legislature for approval.
8. The agency submits rule to presiding officers in each house in the legislature. Officers forward the rules to the appropriate standing committees in each house.
9. The standing Legislative committees have 30 days to review rule. Either committee may hold a public hearing on the rule, and ask the agency to modify the rule. If neither committee objects, the agency may promulgate rule
10. If either committee objects, the rule is sent to the Joint Committee for Review of Administrative Rules (JCRAR), which is composed of five Senators and five Representatives. The joint committee has 30 days to decide whether to concur with the standing committee’s objection.
11. IF JCRAR does not concur with the standing committee’s objection the agency may promulgate the rule.
12. IF JCRAR concurs with the objection the committee must submit a bill to the legislature within 30 days to the legislature to prevent implementation of the rule. JCRAR can also send the rule back to the agency for specified (or unspecified) modifications
13. Once a rule is approved by the legislature, it is filed with the secretary of state and the reviser of statutes

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Emergency rules

If the agency determines that it must take action immediately, it issues an emergency rule.  Emergency rules are effective for 150 days and, with the legislature's approval, may be extended up to an additional 120 days.  Usually, an agency will promulgate an emergency rule and, at the same time, begin to promulgate a permanent rule.

There are two types of emergency rules; those necessary to preserve “the public peace, health, safety, or welfare”, and those relating to certain powers of financial institution. Recent natural resource related examples of emergency rules used to respond to new and unregulated threats include chronic wasting disease and the invasive pathogen viral hemorrhagic septicemia or VHS. When the 2007-2009 state budget awarded an increase in funding and match percentage for aquatic invasive species grants, the DNR promulgated emergency rules that reflected the passed budget and simultaneously began revising its permanent rules on the administration of the grants.

The emergency rules process is as follows

1. Agency drafts rule
2. A copy is sent to legislators
3. Copy is filed with the secretary of state
4. Copy is filed with the reviser of statutes
5. Rule goes into effect

There is no public notice or public hearing requirements when initially promulgating an administrative rule. However, generally an agency must hold a hearing within 45 days after the rules effective date, and emergency rules expire within a specified time (although they can be extended with legislative approval).

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