Vol. 76, No. 4, April 2003

Finding Administrative Intent in the Wisconsin Administrative Register

by Mia Sefarbi

When disputes implicate ambiguous Wisconsin administrative rules and regulations, practitioners should consider investigating "scope statements," found in the Wisconsin Administrative Register.¹ The statutory mandate to prepare scope statements and include them in the Administrative Register applies to proposed rules that agencies began to prepare on or after April 1, 1996.² Pursuant to Wis. Stat. section 227.135, agencies are required to prepare statements of the scope of any rules they plan to promulgate before drafting any proposed rule. Scope statements must include: a description of the proposed rule's objective; a description of existing relevant policies; a description of new policies proposed to be included in the rule; and an analysis of policy alternatives.³ This article points out that practitioners have free and ready access to all of these pre-promulgation statements of scope and that the statements may be helpful in construing administrative regulations.

Usefulness of Scope Statements

Agency intent "may be ascertained by an examination of the words of the rule in relation to the scope, history and subject matter of the rule and the object intended to be accomplished or the ill to be remedied...."⁴ Explanatory material from the promulgating agency may be used to aid in clarifying the agency's intent in adopting a regulation.⁵ Thus, scope statements, which have many statutorily-required components that reflect - or broadly hint at - intent, may be interpretive aids for rules that are ambiguous in meaning or effect.

The statements' potential usefulness extends both to proceedings in which the decision-maker is reviewing an agency decision and to proceedings outside of the administrative review framework that involve rule interpretation. As the court of appeals recently noted, when courts review agency interpretations of agency rules, generally only one level of deference is applied, although that deference is variously expressed as "great weight" or "controlling weight."⁶ However, the court's review turns on whether the agency's interpretation is reasonable and is consistent with the meaning or purpose of the regulation.⁷ When the reviewing court finds a regulation ambiguous, it may look to sources beyond the words of the rule in order to determine administrative intent.⁸

Outside of the administrative review framework, Wisconsin case law reflects that judicial interpretation of administrative regulations is undertaken in the same manner as with statutes; the courts seek to determine the intent of the agency that adopted the rule.⁹ When a regulation is ambiguous, the court will look to its history, context, scope, subject matter, and the object to be accomplished.¹⁰

Scope statements may be mined for indications of intent in either context. While the statements' contents vary from topic to topic and from agency to agency, they often detail the considerations, goals, and purposes underlying a proposed rule. The statements may include the concerns of the people who will be governed by the rule,¹¹ citations to relevant court decisions,¹² the agency's perception of the rule's likely effect,¹³ and the agency's observations as to how the issue is handled in other jurisdictions.¹⁴ The statute's mandated analysis of policy alternatives may include the agency's conclusions as to the likely impact of available choices on affected parties and the remedy that the chosen course may provide.¹⁵

Availability of Scope Statements

In 1987, some years prior to the enactment of Wis. Stat. section 227.135, the supreme court observed:

"... in the normal case, i.e. in every agency rulemaking except the issuance of emergency rules pursuant to sec. 227.027, the statutes require the agency to submit to the legislature prior to final adoption of the rule findings of fact and a statement explaining the need for the proposed rule. Section 227.018. [Now Wis. Stat. section. 227.19.] Thus the court will have some record from the agency concerning the basis and need for the rule."¹⁶

Since the 1995 enactment of section 227.135, scope statements have preceded rule drafting and the subsequent submission of reports to the legislature required by Wis. Stat. section 227.19.

Nonetheless, section 227.135 has not yet been expressly cited in a published decision by any Wisconsin court of record, and practitioners may not be reviewing scope statements as frequently as their potential usefulness warrants. One factor possibly acting to discourage use of scope statements is the belief that there is no legislative history for most administrative regulations. In an unpublished opinion predating the enactment of section 227.135, the court of appeals remarked: "[a]s with most administrative code provisions, no legislative history exists to assist us in construing [the rule under consideration]."¹⁷ Although unpublished, the court's observation can surface in electronic database searches on the issue and may discourage further research into administrative intent.

Another possible obstacle to using scope statements is the publication that contains them. In print format, the Wisconsin Administrative Register is an unwieldy resource. Published twice a month, each issue has its own table of contents, but the Register as a whole lacks cumulative tables and indexes. Fee-based electronic access to the Register - on the WisLaw CD-ROM and in the LEXIS database - alleviates the problems caused by lack of indexing and cumulating, but practitioners who do not routinely deal with agency materials may conclude that these options are impractical for limited use.

However, the Revisor of Statutes makes the Wisconsin Administrative Register available at no cost on its Web site, www.legis.state.wi.us/rsb/code/. Online access to the Register's back file begins with the issue of mid-January 1996 - Register No. 481 - and continues through the present. Given the April 1, 1996, applicability of section 227.135, every agency scope statement ever drafted should be accessible through the Revisor's Web site - so long as the back file is maintained at its current January 1996 start date.

Searching for Scope Statements Online

In its electronic Folio format, the Administrative Register as found on the Revisor's Web site permits more systematic searching than does the print counterpart. The entirety of the online material from January 1996 forward constitutes one searchable file. Thus, the lack of indexes and tables online is less of an impediment to locating material related to a particular regulation or topic than it is in print.

An effective search in the Revisor's online Administrative Register can include enclosing the agency abbreviation and affected chapter number in quotation marks (for example, "NR 20" will launch a search for references in the Administrative Register to Department of Natural Resources chapter 20). Keyword searching also is effective. Text containing results is shown in the right-hand portion of the screen with search terms highlighted. The search-specific table of contents that appears in the left-hand portion of the screen shows the location of results; this table reflects both the number of successful hits and where they appear in enumerated volumes of the Administrative Register. Users can expand the table of contents for each volume of the Register that contains a successful result by clicking on the "+" sign. "Scope statements" (denominated "Statements of Scope" in Register volumes before February 2001) are a listed component of the Register's table of contents; when successful search results are contained in a Register's "Scope Statements" section, the expanded table of contents so reflects.

Conclusion

Lack of a fee-based subscription to the Wisconsin Administrative Register does not bar meaningful access to a potential source of agency intent for rules drafted after April 1, 1996. Practitioners may wish to explore whether scope statements will enhance their ability to advocate for a favorable interpretation of administrative rules enacted since that date.

Endnotes

¹See Wis. Stat. § 227.135.

²1995 Wis. Act 106, § 8(1).

³Wis. Stat. § 227.135(1).

⁴See McGarrity v. Welch Plumbing Co., 104 Wis. 2d 414, 425, 312 N.W.2d 37, 42 (1981).

⁵See State ex rel. Staples v. DHSS, 136 Wis. 2d 487, 495, 402 N.W.2d 369, 374 (Ct. App. 1987).

⁶Hillhaven Corp. v. DHFS, 2000 WI App 20, ¶12 n.6, 232 Wis. 2d 400, 606 N.W.2d 572 (citations omitted).

⁷Id.

⁸Staples, 136 Wis. 2d at 495, 402 N.W.2d at 374.

⁹Uebele v. Oehsmen Plastic Greenhouse Mfg. Inc., 125 Wis. 2d 431, 434, 373 N.W.2d 456, 458 (Ct. App. 1985).

¹⁰County of Milwaukee v. Superior of Wisconsin, 2000 WI App 75, ¶11, 234 Wis. 2d 218, 610 N.W.2d 484.

¹¹See, e.g., Statements of Scope of Proposed Rules, Wis. Admin. Reg. No. 536, 12 (Aug. 15, 2000), discussing ch. WGC 63 (noting agency belief that "if the rules are not changed, they will be inconsistent with the feedback the Lottery has received from not-for-profit organizations concerning needed improvements in Lottery customer service and contract relations").

¹²See, e.g., Statement of Scope of Proposed Rules, Wis. Admin. Reg. No. 537, 16 (Oct. 1, 2000), discussing ch. HFS 79 (citing a court of appeals decision requiring rule promulgation to permit recovery of certain overpayments).

¹³See, e.g., Scope Statements, Wis. Admin. Reg. No. 555, 9 (April 1, 2002), discussing ch. ETF 20 (reflecting agency belief that the proposed amendment would result in distribution of funds "more quickly and equitably").

¹⁴See, e.g., Scope Statements, Wis. Admin. Reg. No. 553, 14 (Feb. 1, 2002), discussing ch. Trans. 139 (noting both that states bordering Wisconsin permit motor vehicle dealers to charge processing fees and that the proposed rule eliminating a prohibition on such fees will allow Wisconsin's dealers the same competitive advantage).

¹⁵See id.

¹⁶Liberty Homes v. DILHR, 136 Wis. 2d 368, 380, 401 N.W.2d 805, 810 (1987).

¹⁷Andersen v. Pugh, No. 87-0126, slip op. at 3 (Wis. Ct. App. Sept. 16, 1987).

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