227.01(13)(y)
(y) Prescribes measures to minimize the adverse environmental impact of bridge and highway construction and maintenance.
227.01(13)(yt)
(yt) Relates to implementing, interpreting, or administering s.
283.16, including determining social and economic impacts of compliance with phosphorus effluent limitations, establishing application and eligibility requirements for obtaining a variance, and providing guidance to the public.
227.01(13)(za)
(za) Is a manual prepared under s.
227.15 (7) to provide agencies with information on drafting, promulgation and legislative review of rules.
227.01(13)(zb)
(zb) Establishes a list of substances in groundwater and their categories under s.
160.05.
227.01(13)(zf)
(zf) Establishes the list of properties on the state register of historic places under s.
44.36 or the list of locally designated historic places under s.
44.45.
227.01(13)(zn)
(zn) Establishes criteria and standards for certifying instructors for the trapper education program.
227.01(13)(zr)
(zr) Relates to the administration or implementation of a cooperative agreement under s.
28.15.
227.01(13)(zx)
(zx) Determines a fee under s.
440.03 (9) for an initial credential for which no examination is required, for a reciprocal credential, or for a credential renewal.
227.01(13)(zy)
(zy) Relates to any form prescribed by the division of banking in the department of financial institutions in connection with the licensing of mortgage bankers or mortgage brokers under s.
224.72 or the licensing of mortgage loan originators under s.
224.725.
227.01 History
History: 1985 a. 182;
1987 a. 27,
119,
395,
399,
403;
1989 a. 31,
56,
335,
341;
1991 a. 39,
254,
269,
309,
315;
1993 a. 16,
123,
237,
349,
364,
419,
442,
481,
491;
1995 a. 27,
215,
227,
289,
363;
1997 a. 27,
35,
231,
237;
1999 a. 9,
70;
1999 a. 150 s.
672;
1999 a. 167;
2001 a. 38,
109;
2003 a. 33 ss.
2364,
2813;
2005 a. 217,
418;
2007 a. 20;
2009 a. 2,
28,
219,
391;
2011 a. 14,
32,
118,
167;
2013 a. 20,
22,
52,
101;
2013 a. 116 s.
31;
2013 a. 125,
134,
136;
2013 a. 151 s.
28;
2013 a. 210,
277,
278,
295,
320,
332,
361,
363,
377;
2015 a. 55,
90,
163,
196,
205,
208,
269;
2017 a. 262,
369.
227.01 Annotation
A proceeding for the incorporation of a village is not a “contested case" under sub. (3). Westring v. James,
71 Wis. 2d 462,
238 N.W.2d 695 (1976).
227.01 Annotation
A flood plain zoning ordinance adopted by the DNR under s. 87.30 (1) was a “rule" under s. 227.01. Citizens for Sensible Zoning, Inc. v. DNR,
90 Wis. 2d 804,
280 N.W.2d 702 (1979).
227.01 Annotation
A rule: 1) is a regulation, standard, statement of policy, or general order; 2) is of general application; 3) has the effect of law; 4) is issued by an agency; 5) is to implement, interpret, or make specific legislation administered by the agency. The terms “rule" and “order" are mutually exclusive. Wis. Elec. Power Co. v. DNR,
93 Wis. 2d 222,
287 N.W.2d 113 (1980). See also Cholvin v. Department of Health and Family Services,
2008 WI App 127,
313 Wis. 2d 749,
758 N.W.2d 118,
07-1350.
227.01 Annotation
Principles of statutory construction apply to the construction of rules. Law Enforcement Standards Board v. Lyndon Station,
101 Wis. 2d 472,
305 N.W.2d 89 (1981).
227.01 Annotation
School boards are not “boards" under sub. (1). Racine Unified School District v. Thompson,
107 Wis. 2d 657,
321 N.W.2d 334 (Ct. App. 1982).
227.01 Annotation
When a fundamental and well-defined public policy is evidenced by a rule, a discharge from employment for refusal to violate that rule is actionable. Winkelman v. Beloit Memorial Hospital,
168 Wis. 2d 12,
483 N.W.2d 211 (1992).
227.01 Annotation
The definition of “rule" under sub. (13) is applied. Plumbing Apprenticeship Committee v. DILHR,
172 Wis. 2d 299,
493 N.W.2d 744 (Ct. App. 1992).
227.01 Annotation
Materials developed by an agency as a reference aid for its staff that are couched in terms of advice and guidelines rather than setting forth law-like pronouncements are not a rule within the meaning of sub. (13) because they are not intended to have the effect of law. Chenequa Land Conservancy, Inc. v. Village of Hartland,
2004 WI App 144,
275 Wis. 2d 533,
685 N.W.2d 573,
03-2486.
227.01 Annotation
If an administrative rule is properly adopted and is within the power of the legislature to delegate, there is no material difference between it and a law. 63 Atty. Gen. 159.
227.01 Annotation
Agencies are subject to rule-making procedures in making discretionary choices even if those choices are based on opinions of the attorney general. Rule-making procedures do not apply if the opinion describes what a law mandates. 68 Atty. Gen. 363.
227.02
227.02
Compliance with other statutes. Compliance with this chapter does not eliminate the necessity of complying with a procedure required by another statute.
227.02 History
History: 1985 a. 182.
227.02 Annotation
Chapter 227 contemplates the limited use of civil procedure statutes that do not conflict with ch. 227. Wagner v. State Medical Examining Board,
181 Wis. 2d 633,
511 N.W.2d 874 (1994).
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.
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.
