The Policy and Budget team is responsible for coordinating the process for proposed changes to DPI administrative rules. The list of all proposed rule modifications that are currently in process can be viewed by clicking here. The list of all final rules that have been promulgated can be found by clicking on the Archived Rules page.
What is a Rule?
Under Wis. Stat. 227.01 (13), an administrative rule is defined as "a regulation, standard, statement of policy, or general order of general application which has the effect of law and which is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency." Rules may be required because of a court decision or legislation, or may be modified through an agency's own initiative. However, agencies such as DPI are only permitted to promulgate an administrative rule if they have the authority to do so.
The rulemaking process in Wisconsin has different steps and varies along different dimensions, including type of rule (permanent and emergency) as well as subject matter (involving housing, energy, small business, etc., which require additional considerations). However, the Department of Public Instruction is not required to follow all of these steps. Pursuant to Coyne v. Walker, the Department of Public Instruction is not required to obtain the Governor’s approval for the statement of scopes; the Department's economic impact analysis is not reviewable by the Department of Administration (DOA) and the Governor does not approve the final rule before it is sent to the Legislature. Coyne v. Walker, 2016 WI 38, 368 Wis. 2d 444.
Promulgation activity for administrative rules can take 9-12 months to complete. The information below describes the basic rulemaking steps employed by DPI and most agencies.
Steps for Rule Promulgation
The first step in the rulemaking process is preparation of a scope statement which contains certain information about the agency’s plans to promulgate the rule. Scope statements must include the objective of the proposed rule, the statutory authority for the rule, and a description of all entities that may be affected by the rule and are prepared for both permanent rules and emergency rules. A scope statement is submitted to the Legislative Reference Bureau (LRB), where it is assigned a discrete identifying number (SS#) and published in the Administrative Register. An agency head may not approve the statement of scope for drafting a proposed rule until at least 10 days after publication of the statement in the Register.
Pursuant to Wis. Stat. 227.135 (5), a statement of scope generally expires 30 months after its publication in the Administrative Register or by the agency's direction. A scope statement is deemed withdrawn by the agency if the rule has not been submitted to the Legislature prior to expiration of the scope statement.
Prior to approval of a scope statement of a proposed rule, either cochairperson of the Joint Committee for Review of Administrative Rules (JCRAR) may submit a directive to the agency that prepared the scope statement to hold a preliminary public hearing and comment period on the scope statement. An agency may not begin drafting the proposed rule until the scope statement is approved by the agency head. When applicable, the preliminary public hearing and comment period would take place before approval of the scope statement by the State Superintendent.
Once a statement of scope has been published in the Administrative Register and approved by the State Superintendent, drafting of the rule may begin. Each agency shall prepare in plain language an analysis, as well as a separate economic impact analysis, for each proposed rule. Upon completion of the rule draft, the proposed rule is sent to the Legislative Council Rules Clearinghouse where it is given a special Clearinghouse number designation (CR#) and is reviewed for proper statutory authority and promulgation procedures. The Clearinghouse review of a proposed rule must be completed within 20 days of receipt of the rule. Most rules are promulgated as permanent rules.
After a permanent rule is submitted to the Rules Clearinghouse for review, the agency must hold a public agency hearing for each proposed rule before the rule is submitted to the Legislature. Public hearings must also be held for emergency rules.
All rulemaking by an agency shall be preceded by notice and public hearing requirements as provided under Wisconsin statutes. However, Wis. Stat. 227.16 (2) (b) provides an exception for rules that "bring an existing rule into conformity with a statute that has been changed or enacted or with a controlling judicial decision," including technical changes to rules.
Once a public hearing is held or if no public hearing is required, a permanent rule can be submitted to the Legislature for either passive review or legislative action if any of the standing committees object to the rule. Emergency rules are not required to be submitted to the Legislature. Under Wis. Stat. 227.19 (2) and 227.19 (4) (b) 1., a rule is referred to one standing committee in each house, for a period not to exceed 30 days, before being submitted to JCRAR for an additional 30 days, unless legislative action is required for promulgating the rule.
After legislative review, the final stage of the rulemaking process is filing the rule with the LRB to become effective. Under Wis. Stat. 227.20 (2), a rule is effective on the first day of the month commencing after the date of publication in the Administrative Register unless the statute under which the rule was promulgated prescribes a different effective date for the rule or a later date is prescribed by the agency in a statement filed with the rule.
The Rulemaking Process for Unique Situations
If preservation of the public peace, health, safety, or welfare necessitates placing a rule into effect prior to the time it could take effect as a permanent rule, the agency may initially adopt the rule as an emergency rule (designated with an EmR#). Once a statement of scope for an emergency rule has been published in the Administrative Register and approved by the State Superintendent, the rule can be submitted for publication and is effective upon publication in the official state newspaper for a period of 150 days, with the option for two extensions not to exceed 120 days as approved by the Legislature.
State statutes provide that agencies may petition JCRAR to repeal certain existing administrative rules using an expedited process. The process applies to an “unauthorized rule,” defined to mean a rule that an agency lacks the authority to promulgate due to the repeal or amendment of the law that previously authorized its promulgation. If JCRAR approves a petition to repeal an unauthorized rule, the agency shall promulgate the proposed rule by filing a certified copy of the rule with the LRB to become effective as a final rule.
- DPI Administrative Code. The official index of all DPI permanent rules currently in effect.
- Wisconsin Administrative Code. The official index of all permanent rules currently in effect.
- Wisconsin Administrative Register. The official publication of the updates and changes to the Wisconsin Administrative Code.