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 HistoryHistory: 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; 2019 a. 169; 2023 a. 128. 227.01 AnnotationA 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 AnnotationA flood plain zoning ordinance adopted by the Department of Natural Resources under s. 87.30 (1) was a “rule” under this section. Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979). 227.01 AnnotationA 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. Wisconsin Electric Power Co. v. DNR, 93 Wis. 2d 222, 287 N.W.2d 113 (1980). See also Cholvin v. Department of Health & Family Services, 2008 WI App 127, 313 Wis. 2d 749, 758 N.W.2d 118, 07-1350. 227.01 AnnotationPrinciples of statutory construction apply to the construction of rules. Law Enforcement Standards Board v. Village of Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981). 227.01 AnnotationSchool 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 AnnotationWhen 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 AnnotationApplying the definition of “rule” under sub. (13). Plumbing Apprenticeship Committee v. DILHR, 172 Wis. 2d 299, 493 N.W.2d 744 (Ct. App. 1992). 227.01 AnnotationMaterials 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 AnnotationIf an agency’s policy meets the five-part definition of a rule, the policy is invalid and unenforceable when it has not been promulgated according to statutory rulemaking procedures. Wisconsin Manufacturers & Commerce, Inc. v. DNR, 2024 WI App 18, 411 Wis. 2d 462, 5 N.W.3d 903, 22-0718. 227.01 AnnotationIn determining whether an agency’s policy meets the five-part definition of a rule, a policy is “of general application” if the class is described in general terms and new members can be added to the class. Additionally, a policy can apply to all applicants even though it may affect only some of them. Wisconsin Manufacturers & Commerce, Inc. v. DNR, 2024 WI App 18, 411 Wis. 2d 462, 5 N.W.3d 903, 22-0718. 227.01 AnnotationIn determining whether an agency’s policy meets the five-part definition of a rule, the agency’s policy has the “effect of law” when criminal or civil sanctions can result as a violation; when licensure can be denied; and when the interest of individuals in a class can be legally affected through enforcement of the agency action. Moreover, statements using express mandatory language are more than informational. In those provisions, the agency speaks with an official voice intended to have the effect of law. Wisconsin Manufacturers & Commerce, Inc. v. DNR, 2024 WI App 18, 411 Wis. 2d 462, 5 N.W.3d 903, 22-0718. 227.01 AnnotationIf 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 AnnotationAgencies 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.
227.01 AnnotationRegulatory Reform: Moving Policymaking from State Agencies to the Legislature. Jensen. Wis. Law. Oct. 2018.
227.02227.02 Compliance with other statutes. Compliance with this chapter does not eliminate the necessity of complying with a procedure required by another statute. 227.02 HistoryHistory: 1985 a. 182. 227.02 AnnotationThis chapter contemplates the limited use of civil procedure statutes that do not conflict with this chapter. Wagner v. State Medical Examining Board, 181 Wis. 2d 633, 511 N.W.2d 874 (1994). 227.03227.03 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 HistoryHistory: 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. 227.04227.04 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 HistoryHistory: 2011 a. 46; 2013 a. 296 ss. 1 to 7g, 9, 11, 12g, 13. 227.05227.05 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 HistoryHistory: 2017 a. 369. 227.05 NoteNOTE: 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 AnnotationThe legislature may enact the laws the executive is duty-bound to execute, but it may not control his knowledge or intentions about those laws. Nor may it mute or modulate the communication of his knowledge or intentions to the public. Because there was no set of facts pursuant to which this section, to the extent it applies to guidance documents, and s. 227.112 would not impermissibly interfere with the executive’s exercise of his 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. ADMINISTRATIVE RULES AND
GUIDANCE DOCUMENTS
227.10227.10 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.
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