227.03
227.03
Application of this chapter. 227.03(3)
(3) Any provision of
s. 227.42,
227.44 or
227.49 that is inconsistent with a requirement of title 45 of the code of federal regulations does not apply to hearings held under
ch. 49.
227.03(3m)(a)(a) This chapter does not apply to proceedings before the department of workforce development relating to housing discrimination under
s. 106.50, except as provided in
s. 106.50 (6).
227.03(3m)(b)
(b) Only the provisions of this chapter relating to rules are applicable to matters arising out of protection against discrimination in a public place of accommodation or amusement under
s. 106.52.
227.03(4)
(4) The provisions of this chapter relating to contested cases do not apply to proceedings involving the revocation of community supervision or aftercare supervision under
s. 938.357 (5), the revocation of parole, extended supervision, or probation, the grant of probation, prison discipline, mandatory release under
s. 302.11, or any other proceeding involving the care and treatment of a resident or an inmate of a correctional institution.
Effective date note
NOTE: Sub. (4) is shown as amended eff. 7-1-17, or on the 2nd day after publication of the 2017-19 biennial budget act, whichever is later, by
2015 Wis. Act 55. Prior to that date it reads:
Effective date text
(4) The provisions of this chapter relating to contested cases do not apply to proceedings involving the revocation of aftercare supervision under s. 938.357 (5), the revocation of parole, extended supervision, or probation, the grant of probation, prison discipline, mandatory release under s. 302.11, or any other proceeding involving the care and treatment of a resident or an inmate of a correctional institution.
227.03(4m)
(4m) Subchapter III does not apply to any decision of an agency to suspend or restrict or not issue or renew a license if the agency suspends or restricts or does not issue or renew the license pursuant to a memorandum of understanding entered into under
s. 49.857.
227.03(6)
(6) Orders of the elections commission under
s. 5.06 (6) are not subject to this chapter.
227.03(7)
(7) Except as provided in
s. 230.44 (4) (bm), this chapter does not apply to proceedings before the employment relations commission in matters that are arbitrated in accordance with
s. 230.44 (4) (bm).
227.03(8)
(8) This chapter does not apply to determinations made by the secretary of administration or the secretary of revenue under
s. 229.50 (1).
227.03 History
History: 1985 a. 182;
1989 a. 31;
1991 a. 32,
295;
1993 a. 16,
263,
377;
1995 a. 27 ss.
6224 to
6226m,
9130 (4);
1995 a. 77,
227,
351;
1997 a. 3,
191,
237,
283;
1999 a. 82;
2003 a. 33;
2007 a. 1;
2013 a. 20,
334;
2015 a. 55,
118,
216.
227.04
227.04
Considerations for small business. 227.04(1)(a)
(a) “Minor violation" means a rule violation that does not cause serious harm to the public, is committed by a small business, and the violation is not willful, the violation is not likely to be repeated, there is a history of compliance by the violator, or the small business has voluntarily disclosed the violation.
227.04(2m)(a)(a) Each agency shall promulgate a rule that requires the agency to disclose in advance the discretion that the agency will follow in the enforcement of rules against a small business that has committed a minor violation. The rule promulgated under this subsection may include the reduction or waiver of penalties for a voluntary disclosure, by a small business, of actual or potential violations of rules.
227.04(2m)(b)
(b) The rule promulgated under this subsection shall specify the situations in which the agency will allow discretion in the enforcement of a rule against a small business that has committed a minor violation. The rule shall consider the following criteria for allowing discretion in the enforcement of the rule and the assessment of a penalty, including a forfeiture, fine, or interest:
227.04(2m)(b)1.
1. The difficulty and cost of compliance with the rule by the small business.
227.04(2m)(b)2.
2. The financial capacity of the small business, including the ability of the small business to pay the amount of any penalty that may be imposed.
227.04(2m)(b)3.
3. The compliance options available, including options for achieving voluntary compliance with the rule.
227.04(2m)(b)5.
5. The opportunities available to the small business to understand and comply with the rule.
227.04(2m)(b)6.
6. Fairness to the small business and to other persons, including competitors and the public.
227.04(2m)(c)
(c) The rule promulgated under this subsection shall specify the situations in which the agency will not allow discretion in the enforcement of a rule against small businesses that have committed minor violations and shall include all of the following situations in which discretion is not allowed:
227.04(2m)(c)1.
1. The violation results in a substantial economic advantage for the small business.
227.04(2m)(c)2.
2. The small business has violated the same rule or guideline more than 3 times in the past 5 years.
227.04(2m)(c)3.
3. The violation may result in an imminent endangerment to the environment, or to public health or safety.
227.04(2m)(d)
(d) A rule promulgated under this subsection applies to minor violations committed after the effective date of the rule.
227.04(3)
(3) Consistent with the requirements under
sub. (2m) and, to the extent possible, each agency shall do all of the following:
227.04(3)(a)
(a) Provide assistance to small businesses to help small businesses comply with rules promulgated by the agency.
227.04(3)(c)
(c) In deciding whether to impose a fine against a small business found to be in violation of a rule, consider the appropriateness of a written warning, reduced fine, or alternative penalty if all of the following apply:
227.04(3)(c)1.
1. The small business has made a good faith effort to comply with the rule.
227.04(3)(c)2.
2. The rule violation does not pose a threat to public health, safety, or welfare.
227.04(3)(d)
(d) Establish methods to encourage the participation of small businesses in rule making under
s. 227.114 (4).
227.04(4)
(4) Each agency shall fully document every instance in which it made the decision to utilize discretion in penalizing businesses as provided in this section, including the reasons for its decision, and shall keep records of those instances on file for not fewer than 5 years.
227.04 History
History: 2011 a. 46;
2013 a. 296 ss.
1 to
7g,
9,
11,
12g,
13.
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(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)(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
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 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 1-16 227.11
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 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.
227.113
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.
