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.
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)(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)(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)(a)
(a) “Department" means the department of administration.
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 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 Annotation
Sub. (2) requires a report on the effect of a proposed rule on housing if the “rule directly or substantially affects the development, construction, cost, or availability of housing in this state. . ." The use of the phrase “directly or substantially" demonstrates that not just any effect will trigger the housing impact report requirement. A housing impact report is not required simply because the subject matter of a proposed rule relates to housing, or because the rule tangentially affects housing in some way. Wisconsin Realtors Association v. Public Service Commission of Wisconsin,
2015 WI 63,
363 Wis. 2d 430,
867 N.W.2d 364,
13-1407.
227.115 Annotation
The absence of an explicit, on-the-record determination regarding whether a housing impact report is required is not dispositive and does not mean rules were promulgated without compliance with statutory rule-making procedures. Wisconsin Realtors Association v. Public Service Commission of Wisconsin,
2015 WI 63,
363 Wis. 2d 430,
867 N.W.2d 364,
13-1407.
227.116
227.116
Rules to include time period. 227.116(1g)
(1g) In this section, “permit" means any approval of an agency required as a condition of operating a business in this state.
227.116(1r)
(1r) Each proposed rule submitted to the legislative council under
s. 227.15 that includes a requirement for a business to obtain a permit 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. (1r), 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. (1r). 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 (1r) 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 department of safety and professional services within 5 business days of the last day of the time period specified, setting forth all of the following:
