Attorney General Josh Kaul is currently considering a request from Gov. Tony Evers for a formal opinion regarding the applicability of 2011 Act 21.

Act 21 provided a broad scope of rulemaking reforms. The legislation clarified that agencies may not enforce requirements unless explicitly permitted by statute or properly promulgated rule and further refined what an agency may consider “rule-making authority.” For example, Act 21 specified that statements of legislative intent and statutory provisions “describing an agency’s general powers and duties” do not confer rule-making authority to an agency (Wis. Stat. § 227.11(2)(a)). Furthermore, agencies do not have authority to establish requirements more restrictive than statutory provisions.

The opinion request from Gov. Evers asks Kaul to opine that Act 21 does not prohibit agencies from promulgating rules if another statute provides broad rulemaking authority. An AG opinion from former Attorney General Brad Schimel had previously found that broad grants of rulemaking authority to an agency are “describing an agency’s general powers and duties” and do not confer rulemaking authority according to § 227.11(2)(a). The opinion request argues the Schimel opinion was erroneous.

The opinion request also asks Kaul to address a part of the Schimel opinion related to § 227.11(2)(a)3., which establishes that agencies may not promulgate rules with standards more restrictive than authorized by statute. The Schimel opinion said the Department of Safety & Professional Services could not promulgate rules requiring four-unit buildings to install automatic sprinkler systems because the rule was more restrictive than the statute authorizing DSPS to require sprinkler systems in buildings with more than 20 units. The opinion request argues the Schimel opinion did not take into account for whom the requirements were “more restrictive” and that a broad grant of rulemaking authority to DSPS elsewhere in the statutes would allow promulgation of the more restrictive rule.

Comments on the AG opinion request can be made here until Oct. 26.