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.
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.
227.05
227.05
Agency publications. An agency, other than the Board of Regents of the University of Wisconsin System, the Technical College System Board, or the department of employee trust funds, shall identify the applicable provision of federal law or the applicable state statutory or administrative code provision that supports any statement or interpretation of law that the agency makes in any publication, whether in print or on the agency's Internet site, including guidance documents, forms, pamphlets, or other informational materials, regarding the laws the agency administers.
227.05 History
History: 2017 a. 369.
ADMINISTRATIVE RULES AND
GUIDANCE DOCUMENTS
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(2g)
(2g) No agency may seek deference in any proceeding based on the agency's interpretation of any 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)(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
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 Annotation
When an agency changes its interpretation of an ambiguous statute, the agency is engaging in rulemaking. The rulemaking exemption described in
Schoolway Transportation Co.,
72 Wis. 2d 223 (1976), does not apply when the agency fails to identify a plain and unambiguous statutory command necessitating the agency's new interpretation. Lamar Central Outdoor, LLC v. Division of Hearings & Appeals,
2019 WI 109,
389 Wis. 2d 486,
936 N.W.2d 573,
17-1823.
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
Agency 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(3)(a)(a) A plan that is submitted to the federal government for the purpose of complying with a requirement of federal law does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. No agency may agree to promulgate a rule as a component of a compliance plan unless the agency has explicit statutory authority to promulgate the rule at the time the compliance plan is submitted.
227.11(3)(b)
(b) A settlement agreement, consent decree, or court order does not confer rule-making authority and cannot be used by an agency as authority to promulgate rules. No agency may agree to promulgate a rule as a term in any settlement agreement, consent decree, or stipulated order of a court unless the agency has explicit statutory authority to promulgate the rule at the time the settlement agreement, consent decree, or stipulated order of a court is executed.
227.11 Annotation
To expressly authorize a rule, the enabling statute need not spell out every detail of the rule. If it did, no rule would be necessary. Accordingly, whether the exact words used in an administrative rule appear in the statute is not the question. This principle has been characterized in the case law as the “elemental approach." Under the elemental approach, the reviewing court should identify the elements of the enabling statute and match the rule against those elements. If the rule matches the statutory elements, then the statute expressly authorizes the rule. Wisconsin Association of State Prosecutors v. WERC,
2018 WI 17,
380 Wis. 2d 1,
907 N.W.2d 425,
15-2224.
227.11 Annotation
When administrative agencies promulgate rules, they are exercising legislative power that the legislature has chosen to delegate to them by statute. Stated otherwise, agencies have no inherent constitutional authority to make rules, and their rule-making powers can be repealed by the legislature. It follows that the legislature may place limitations and conditions on an agency's exercise of rulemaking authority, including establishing the procedures by which agencies may promulgate rules. Koschkee v. Taylor,
2019 WI 76,
387 Wis. 2d 552,
929 N.W.2d 600,
17-2278.
227.11 Annotation
Rulemaking is a legislative power that does not fall within the state superintendent of public instruction's supervisory constitutional authority under
article X, section 1, of the Wisconsin Constitution. Rulemaking is a legislative delegation to the state superintendent; therefore, it may be limited or taken away, as the legislature chooses. Koschkee v. Taylor,
2019 WI 76,
387 Wis. 2d 552,
929 N.W.2d 600,
17-2278.
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.
