227.10 Annotation
An agency's revised interpretation of a statute constituted administrative rule-making under s. 227.01 (4) [now s. 227.10] and declaratory relief under s. 227.40 was accordingly proper. What constitutes a rule is discussed. 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 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.
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 as follows:
227.11(2)(a)
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if it exceeds the bounds of correct interpretation.
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from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed.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.
227.11 Annotation
The Designer Section of the Examining Board of Architects, Professional Engineers, Designers and Land Surveyors does not have rulemaking authority.
74 Atty. Gen. 200.
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(5)
(5) Prior to the notice required under
s. 227.17 (1) (a), the agency shall notify the secretary of commerce and the small business ombudsman clearinghouse that it proposes to promulgate a rule that will have an effect on small businesses.
227.114(6)
(6) When an agency, under
s. 227.20 (1), files with the revisor 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 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 agency's determination under
s. 227.19 (3m). The revisor shall publish the summaries or the statement in the register with the rule.
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(7)
(7) Each agency shall, during the 5-year period beginning with January 1, 1984, review the current rules of the agency that were in effect prior to that date and shall consider methods of reducing their impact on small businesses as provided under
sub. (2). If any method appears feasible, the agency shall propose an amendment to the rule. No review is necessary for any rule that is repealed during the 5-year period.
227.114(7m)
(7m) The agency shall designate a small business regulatory coordinator to act as a contact person for small business regulatory issues and shall publicize that person's electronic mail address and telephone number.
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(2)
(2) Report on rules affecting housing. If a proposed rule directly or substantially affects the development, construction, cost or availability of housing in this state, the department, through the division of housing, shall prepare a report on the proposed rule before it is submitted to the legislative council staff under
s. 227.15. The department may request any information from other state agencies, local governments or individuals or organizations that is reasonably necessary for the department to prepare the report. The department shall prepare the report within 30 days after the rule is submitted to the department.
227.115(3)
(3) Findings of the department to be contained in the report. 227.115(3)(a)(a) The report of the department 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 constructing, rehabilitating, improving or maintaining single family or multifamily dwellings.
227.115(3)(a)4.
4. The cost and availability of financing to purchase or develop housing.
227.115(3)(b)
(b) The report shall analyze the relative impact of the effects of the proposed rule on low- and moderate-income households.
227.115(4)
(4) Applicability. This section does not apply to emergency rules promulgated under
s. 227.24.
227.115(5)
(5) Rule-making authority. The department may promulgate any rules necessary for the administration of this section.
227.115 History
History: 1995 a. 308;
2003 a. 33.
227.116
227.116
Rules to include time period. 227.116(1)
(1) Each proposed rule submitted to the legislative council under
s. 227.15 that includes a requirement for a business to obtain a permit, as defined in
s. 560.41 (2), shall specify the number of business days, calculated beginning on the day a permit application is received, within which the agency will review and make a determination on a permit application.
227.116(2)
(2) If any existing rule does not comply with
sub. (1), the agency that promulgated the rule shall submit to the legislative council a proposed revision of the rule that will bring the rule into compliance with
sub. (1). The legislative council staff's review of the proposed revision is limited to determining whether or not the agency has complied with this subsection.
227.116(3)
(3) Subsections (1) and
(2) do not apply to a rule if the rule, or a law under which the rule was promulgated, effective prior to November 17, 1983, contains a specification of a time period for review and determination on a permit application.
227.116(4)
(4) If an agency fails to review and make a determination on a permit application within the time period specified in a rule or law, for each such failure the agency shall prepare a report and submit it to the business development assistance center within 5 business days of the last day of the time period specified, setting forth all of the following:
227.116(4)(a)
(a) The name of the person who submitted the permit application and the business activity for which the permit is required.
227.116(4)(b)
(b) Why the review and determination were not completed within the specified time period and a specification of the revised time period within which the review and determination will be completed.
227.116(4)(c)
(c) How the agency intends to avoid such failures in the future.
227.116(5)
(5) If an agency fails to review and make a determination on a permit application within the time period specified in a rule or law, upon completion of the review and determination for that application, the agency shall notify the business development assistance center.
227.116(6)(a)(a) An agency's failure to review and make a determination on a permit application within the time period specified in a rule or law does not relieve any person from the obligation to secure a required permit nor affect in any way the agency's authority to interpret the requirements of or grant or deny permits.
227.116(6)(b)
(b) If a court finds that an agency failed to review and make a determination on a permit application within the time period specified in a rule or law, that finding shall not constitute grounds for declaring the agency's determination invalid.
227.117
227.117
Review of rules impacting energy availability. 227.117(1)(1) The public service commission shall prepare an energy impact report on any proposed rule if, not later than 30 days after the public hearing under
s. 227.18, the chairperson or ranking minority member of a standing committee, the speaker of the assembly, or the presiding officer of the senate requests in writing that the commission determine the rule's impact on the cost or reliability of electricity generation, transmission, or distribution or of fuels used in generating electricity. The energy impact report shall include an evaluation and related findings and conclusions on the probable impact of the proposed rule on the cost or reliability of electricity generation, transmission, or distribution or of fuels used in generating electricity.
227.117(2)
(2) Within 30 days after the written request is submitted to the public service commission, the commission shall submit a copy of any energy impact report prepared under
sub. (1) to the agency that proposed the rule that resulted in the report.
227.117(3)
(3) An agency that receives an energy impact report under
sub. (2), shall consider the energy impact report before submitting the notification and report to the legislature under
s. 227.19 (2) and
(3).
227.117 History
History: 2003 a. 277.
227.12
227.12
Petition for rules. 227.12(1)(1) Unless the right to petition for a rule is restricted by statute to a designated group or unless the form of procedure for a petition is otherwise prescribed by statute, a municipality, an association which is representative of a farm, labor, business or professional group, or any 5 or more persons having an interest in a rule may petition an agency requesting it to promulgate a rule.
227.12(2)
(2) A petition shall state clearly and concisely:
227.12(2)(a)
(a) The substance or nature of the rule making requested.
227.12(2)(b)
(b) The reason for the request and the petitioners' interest in the requested rule.
227.12(2)(c)
(c) A reference to the agency's authority to promulgate the requested rule.
227.12(3)
(3) Within a reasonable period of time after the receipt of a petition under this section, an agency shall either deny the petition in writing or proceed with the requested rule making. If the agency denies the petition, it shall promptly notify the petitioner of the denial, including a brief statement of the reason for the denial. If the agency proceeds with the requested rule making, it shall follow the procedures prescribed in this subchapter.
227.12 History
History: 1985 a. 182.
227.13
227.13
Advisory committees and informal consultations. An agency may use informal conferences and consultations to obtain the viewpoint and advice of interested persons with respect to contemplated rule making. An agency also may appoint a committee of experts, interested persons or representatives of the public to advise it with respect to any contemplated rule making. The committee shall have advisory powers only.
