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.

227.04 Cross-reference Cross-reference: See also chs. DFI-Gen 2 and DHS 19 and ss. ATCP 1.40, SPS 306.02, and Tax 1.15 and 61.25, Wis. adm. code.

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.

227.05 Note NOTE: In Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, the Wisconsin Supreme Court held that this section is facially unconstitutional to the extent that it addresses guidance documents.

227.05 Annotation The legislature may enact the laws the executive is duty-bound to execute, but it may not control the executive’s knowledge or intentions about those laws. Nor may the legislature mute or modulate the communication of the executive’s knowledge or intentions to the public. Because there was no set of facts pursuant to which this section, to the extent it applied to guidance documents, and s. 227.112 would not impermissibly interfere with the executive’s exercise of core constitutional power, they were in that respect facially unconstitutional. Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, 19-0614.

subch. II of ch. 227 SUBCHAPTER II

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) (3) 

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)(d) (d) No rule may use any term removed from the statutes by chapter 83, laws of 1977.

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).