227.04 Cross-reference Cross-reference: See also chs. DFI-Gen 2 and DHS 19 and ss. ATCP 1.40, SPS 306.02, Tax 1.15, and Tax 61.25 Wis. adm. code.
subch. II of ch. 227 SUBCHAPTER II
ADMINISTRATIVE RULES
227.10 227.10 Statements of policy and interpretations of law; discrimination prohibited.
227.10(1) (1) Each agency shall promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute. A statement of policy or an interpretation of a statute made in the decision of a contested case, in a private letter ruling under s. 73.035 or in an agency decision upon or disposition of a particular matter as applied to a specific set of facts does not render it a rule or constitute specific adoption of a rule and is not required to be promulgated as a rule.
227.10(2) (2) No agency may promulgate a rule which conflicts with state law.
227.10(2m) (2m) No agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter, except as provided in s. 186.118 (2) (c) and (3) (b) 3. The governor, by executive order, may prescribe guidelines to ensure that rules are promulgated in compliance with this subchapter.
227.10(2p) (2p) No agency may promulgate a rule or take any other action that requires one or more lots to be merged with another lot, for any purpose, without the consent of the owners of the lots that are to be merged.
227.10(3) (3)
227.10(3)(a)(a) No rule, either by its terms or in its application, may discriminate for or against any person by reason of sex, race, creed, color, sexual orientation, national origin or ancestry.
227.10(3)(b) (b) A rule may discriminate for or against a person by reason of physical condition or developmental disability as defined in s. 51.01 (5) only if it is strictly necessary to a function of the agency and is supported by data demonstrating that necessity.
227.10(3)(c) (c) Each person affected by a rule is entitled to the same benefits and is subject to the same obligations as any other person under the same or similar circumstances.
227.10(3)(d) (d) No rule may use any term removed from the statutes by chapter 83, laws of 1977.
227.10(3)(e) (e) Nothing in this subsection prohibits the director of the bureau of merit recruitment and selection in the department of administration from promulgating rules relating to expanded certification under s. 230.25 (1n).
227.10 Annotation Guidelines promulgated outside the context of one particular contested case do not qualify for exception to the requirement that all rules must be filed under s. 227.023 [now s. 227.20]. Here, failure to file the guideline as a rule did not deprive the department of the authority to decide contested cases dealing with pregnancy leaves under the sex discrimination statute. Wisconsin Telephone Co. v. Department of Industry, Labor, and Human Relations, 228 NW 2d 649, 68 Wis. 2d 345, (1975).
227.10 Annotation When a party files an application for a license with an administrative agency and the latter points to some announced agency policy of general application as a reason for rejecting the application, such announced policy constitutes a rule, the validity of which the applicant is entitled to have tested in a declaratory action. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223, 240 N.W.2d 403 (1976).
227.10 Annotation When the department of transportation (DOT) revised its application of a statute to bring DOT's practices into conformity with the plain meaning of the statute, DOT followed a course it was obliged to pursue when confronted with its error. This is not a regulation, standard, statement of policy, or general order. Neither is it a statement of general policy or interpretation of a statute. Therefore, there was no requirement that DOT comply with the filing procedures mandated in connection with promulgation of administrative rules. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223, 240 N.W.2d 403 (1976).
227.10 Annotation The department of transportation (DOT) engaged in administrative rule making when it changed its interpretation of a statute whose terms did not specifically require the interpretation, the interpretation was administered as law, and DOT relied upon the interpretation to deny the issuance of a license in a form in direct contrast to the manner in which the statute was previously administered by the DOT. Those who are or will be affected generally by such an interpretation should have the opportunity to be informed as to the manner in which the terms of the statute regulating their operations will be applied. This is accomplished by the issuance and filing procedures under ch. 227 and the rule is invalid until such measures are taken. Schoolway Transportation Co. v. Division of Motor Vehicles, 72 Wis. 2d 223, 240 N.W.2d 403 (1976).
227.10 Annotation The legislature may constitutionally prescribe a criminal penalty for the violation of an administrative rule. State v. Courtney, 74 Wis. 2d 705, 247 N.W.2d 714 (1976).
227.10 Annotation A memorandum announcing general policies and specific criteria governing all decisions on good time for mandatory release parole violations was a “rule" and should have been promulgated properly. State ex rel. Clifton v. Young, 133 Wis. 2d 193, 394 N.W.2d 769 (Ct. App. 1986).
227.10 Annotation An agency may use policies and guidelines to assist in the implementation of administrative rules provided they are consistent with state and federal legislation. Tannler v. Department of Health and Social Services, 211 Wis. 2d 179, 564 NW 2d 735 (1997)
227.10 Annotation An administrative agency cannot regulate the activities of another agency or promulgate rules to bind another agency without express statutory authority. George v. Schwarz, 2001 WI App 72, 242 Wis. 2d 450, 626 N.W.2d 57, 00-2711.
227.10 AnnotationUnder 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
227.10 Annotation 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 s. 227.11 (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; and 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.
227.10 Annotation Despite its procedurally lawful promulgation in the past, in light of changes to this section and s. 227.11 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.
227.11 227.11 Extent to which chapter confers rule-making authority.
227.11(1)(1) Except as expressly provided, this chapter does not confer rule-making authority upon or augment the rule-making authority of any agency.
227.11(2) (2) Rule-making authority is expressly conferred on an agency as follows:
227.11(2)(a) (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:
227.11(2)(a)1. 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.
227.11(2)(a)2. 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.
227.11(2)(a)3. 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.
227.11(2)(b) (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.
227.11(2)(c) (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.
227.11(2)(d) (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.
227.11(2)(e) (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.
227.11 History History: 1985 a. 182; 1991 a. 209; 2011 a. 21; 2013 a. 125, 136, 210, 277, 278, 295, 320, 332, 361, 363.
227.11 AnnotationUnder 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
227.11 Annotation 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.
227.11 Annotation 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.
227.11 Annotation 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.
227.111 227.111 Rule-making authority of certain agencies.
227.111(1)(1) In this section, “restricted agency” means an affiliated credentialing board, as defined in s. 15.01 (1g), a board, as defined in s. 15.01 (1r), a commission, as defined in s. 15.01 (2), or an examining board, as defined in s. 15.01 (7), that has not taken any action under this subchapter with respect to the promulgation of a rule in 10 years or more.
227.111(2) (2) Notwithstanding ss. 227.10 and 227.11 and any other provision authorizing or requiring a restricted agency to promulgate rules, a restricted agency may not take any action with respect to the promulgation of a rule unless a subsequent law specifically authorizes such action.
227.111 History History: 2017 a. 158.
227.113 227.113 Incorporation of local, comprehensive planning goals. Each agency, where applicable and consistent with the laws that it administers, is encouraged to design the rules promulgated by the agency to reflect a balance between the mission of the agency and the goals specified in s. 1.13 (2).
227.113 History History: 1999 a. 9.
227.114 227.114 Rule making; considerations for small business.
227.114(1)(1) In this section, “small business" means a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
227.114(2) (2) When an agency proposes or revises a rule that may have an effect on small businesses, the agency shall consider each of the following methods for reducing the impact of the rule on small businesses:
227.114(2)(a) (a) The establishment of less stringent compliance or reporting requirements for small businesses.
227.114(2)(b) (b) The establishment of less stringent schedules or deadlines for compliance or reporting requirements for small businesses.
227.114(2)(c) (c) The consolidation or simplification of compliance or reporting requirements for small businesses.
227.114(2)(d) (d) The establishment of performance standards for small businesses to replace design or operational standards required in the rule.
227.114(2)(e) (e) The exemption of small businesses from any or all requirements of the rule.
227.114(3) (3) The agency shall incorporate into the proposed rule any of the methods specified under sub. (2) which it finds to be feasible, unless doing so would be contrary to the statutory objectives which are the basis for the proposed rule.
227.114(4) (4) In addition to the requirements under s. 227.17, the agency shall provide an opportunity for small businesses to participate in the rule-making process, using one or more of the following methods:
227.114(4)(a) (a) The inclusion in the notice under s. 227.17 of a statement that the rule may have an impact on small businesses.
227.114(4)(b) (b) The direct notification of any small business that may be affected by the rule.
227.114(4)(c) (c) The conduct of public hearings concerning the impact of the rule on small businesses.
227.114(4)(d) (d) The use of special hearing procedures to reduce the cost or complexity of participation in the rule-making process by small businesses.
227.114(6) (6) When an agency, under s. 227.20 (1), files with the legislative reference bureau a rule that is subject to this section, the agency shall include with the rule a summary of the analysis prepared under s. 227.19 (3) (e) and a summary of the comments of the legislative standing committees, if any. If, under s. 227.19 (3m), the rule does not require the analysis under s. 227.19 (3) (e), the agency shall include with the rule a statement of the reason for the small business regulatory review board's determination that the rule will not have a significant economic impact on a substantial number of small businesses. The legislative reference bureau shall publish the summaries or the statement in the register with the rule.
227.114(6m) (6m)
227.114(6m)(a)(a) Notwithstanding sub. (1), in this subsection, “small business" does not include an entity, as defined in s. 48.685 (1) (b) or 50.065 (1) (c).
227.114(6m)(b) (b) A small business may commence an action against an agency for injunctive relief to prevent the imposition of a penalty if the small business is subject to the penalty as the result of any of the following:
227.114(6m)(b)1. 1. The small business acted or failed to act due to the failure by the agency's employee, officer, or agent with regulatory responsibility for that legal requirement to respond to a specific question in a reasonable time.
227.114(6m)(b)2. 2. The small business acted or failed to act in response to inaccurate advice given to the small business by the agency's employee, officer, or agent with regulatory responsibility for that legal requirement.
227.114(6m)(c) (c) The small business may commence the action in the circuit court for the county where the property affected is located or, if no property is affected, in the circuit court for the county where the dispute arose.
227.114(6m)(d) (d) The circuit court may issue an order enjoining the imposition of the penalty if the court determines that par. (b) 1. or 2. applies.
227.114(7m) (7m) Each agency shall designate at least one employee to serve as the small business regulatory coordinator for the agency, and shall publicize that employee's electronic mail address and telephone number. The small business regulatory coordinator shall act as a contact person for small business regulatory issues for the agency.
227.114(8) (8) This section does not apply to:
227.114(8)(a) (a) Rules promulgated under s. 227.24.
227.114(8)(b) (b) Rules that do not affect small businesses directly, including, but not limited to, rules relating to county or municipal administration of state and federal programs.
227.115 227.115 Review of rules affecting housing.
227.115(1) (1)Definition. In this section, “state housing strategy plan" means the plan developed under s. 16.302.
227.115(2) (2)Analysis of rules affecting housing.
227.115(2)(a)(a) If a proposed rule may increase or decrease, either directly or indirectly, the cost of the development, construction, financing, purchasing, sale, ownership, or availability of housing in this state, the agency promulgating the proposed rule shall prepare a housing impact analysis for the proposed rule before it is submitted to the legislative council staff under s. 227.15. The agency may request any information from other state agencies, local governments, or individuals or organizations that is reasonably necessary for the agency to prepare the analysis.
227.115(2)(b) (b) On the same day that the agency submits the housing impact analysis to the legislative council staff under s. 227.15 (1), the agency shall also submit that analysis to the department of administration, to the governor, and to the chief clerks of each house of the legislature, who shall distribute the analysis to the presiding officers of their respective houses, to the chairpersons of the appropriate standing committees of their respective houses, as designated by those presiding officers, and to the cochairpersons of the joint committee for review of administrative rules. If a proposed rule is modified after the housing impact analysis is submitted under this paragraph so that the housing impact of the proposed rule is significantly changed, the agency shall prepare a revised housing impact analysis for the proposed rule as modified. A revised housing impact analysis shall be prepared and submitted in the same manner as an original housing impact analysis is prepared and submitted.
227.115(3) (3)Findings to be contained in housing impact analysis.
227.115(3)(a)(a) A housing impact analysis shall contain information about the effect of the proposed rule on housing in this state, including information on the effect of the proposed rule on all of the following:
227.115(3)(a)1. 1. The policies, strategies and recommendations of the state housing strategy plan.
227.115(3)(a)2. 2. The cost of developing, constructing, rehabilitating, improving, maintaining, or owning single-family or multifamily dwellings.
227.115(3)(a)3. 3. The purchase price of new homes or the fair market value of existing homes.
227.115(3)(a)4. 4. The cost and availability of financing to purchase or develop housing.
227.115(3)(a)5. 5. Housing costs, as defined in s. 16.301 (3) (a) and (b).
227.115(3)(a)6. 6. The density, location, setback, size, or height of development on a lot, parcel, land division, or subdivision.
227.115(3)(b) (b) A housing impact analysis shall analyze the relative impact of the effects of the proposed rule on low- and moderate-income households.
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2015-16 Wisconsin Statutes updated through 2017 Wis. Act 273 and all Supreme Court and Controlled Substances Board Orders effective on or before April 14, 2018. Published and certified under s. 35.18. Changes effective after April 14, 2018 are designated by NOTES. (Published 4-14-18)