Chapter 227

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.

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

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).

227.10 History History: 1985 a. 182; 1987 a. 399; 2003 a. 33 ss. 2368, 9160; 2011 a. 21; 2013 a. 277; 2015 a. 55; 2017 a. 67, 369.

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 Industry, Labor and Human Relations of the authority to decide contested cases dealing with pregnancy leaves under the sex discrimination statute. Wisconsin Telephone Co. v. DILHR, 68 Wis. 2d 345, 228 N.W.2d 649 (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 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 this chapter, 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 & Social Services, 211 Wis. 2d 179, 564 N.W.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 Annotation An agency may rely upon a grant of authority that is explicit but broad when undertaking agency action, and such an explicit but broad grant of authority complies with sub. (2m). Clean Wisconsin, Inc. v. DNR, 2021 WI 71, 398 Wis. 2d 386, 961 N.W.2d 346, 16-1688.

227.10 Annotation Sub. (2m) targets, in a general sense, only the distinction between explicit and implicit agency authority. It requires courts to strictly construe an agency’s authorizing statute as granting the agency no implicit authority. Sub. (2m) does not, however, strip an agency of the legislatively granted explicit authority it already has. Nor does it negate a more targeted “directive from the legislature” to “liberally construe” the specific statutes that expressly confer an agency’s authority. Accordingly, for purposes of sub. (2m), if the legislature clearly expresses in a statute’s text that an agency can undertake certain actions, the breadth of the resulting authority will not defeat the legislature’s clear expression. Clean Wisconsin, Inc. v. DNR, 2021 WI 72, 398 Wis. 2d 433, 961 N.W.2d 611, 18-0059.

227.10 Annotation Nothing in the language of 2011 Wis. Act 21 alters existing, properly promulgated rules. Under sub. (2m), agencies may continue to implement and enforce existing rules, including standards therein, provided the rule was “promulgated in accordance with” the rulemaking procedures in place at the time the rule was adopted. OAG 4-20.

227.10 Annotation Making “Explicit Authority” Explicit: Deciphering Wis. Act 21’s Prescriptions for Agency Rulemaking Authority. Koschnick. 2019 WLR 993.

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) (3) 

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 History History: 1985 a. 182; 1991 a. 209; 2011 a. 21; 2013 a. 125, 136, 210, 277, 278, 295, 320, 332, 361, 363; 2017 a. 369.

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 Ass’n 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 Annotation Sub. (2) (a) 2. does not alter explicit grants of rulemaking authority, regardless of whether the rulemaking provision in which the authority is granted could be characterized as broad or “general.” OAG 4-20.

227.11 Annotation The plain language of sub. (2) (a) 3. does not alter explicit grants of rulemaking authority to prescribe standards. The fact that the legislature mandates a specific standard in one statute does not, in itself, alter the agency’s ability to promulgate, enforce, or administer a different standard enacted pursuant to a second statutory source of rulemaking authority. This holds true even when the second standard could be characterized as “more restrictive” than the first. OAG 4-20.

227.11 Annotation Making “Explicit Authority” Explicit: Deciphering Wis. Act 21’s Prescriptions for Agency Rulemaking Authority. Koschnick. 2019 WLR 993.

227.111 227.111 Rule-making authority of certain agencies.

227.111(1) (1) In this section, “restricted agency” means an affiliated credentialing board, as defined in s. 15.01 (1g), a board, as defined in s. 15.01 (1r), a commission, as defined in s. 15.01 (2), or an examining board, as defined in s. 15.01 (7), that has not taken any action under this subchapter with respect to the promulgation of a rule in 10 years or more.

227.111(2) (2) Notwithstanding ss. 227.10 and 227.11 and any other provision authorizing or requiring a restricted agency to promulgate rules, a restricted agency may not take any action with respect to the promulgation of a rule unless a subsequent law specifically authorizes such action.

227.111 History History: 2017 a. 158.

227.112 227.112 Guidance documents.

227.112(1) (1) 

227.112(1)(a) (a) Before adopting a guidance document, an agency shall submit to the legislative reference bureau the proposed guidance document with a notice of a public comment period on the proposed guidance document under par. (b), in a format approved by the legislative reference bureau, for publication in the register. The notice shall specify the place where comments should be submitted and the deadline for submitting those comments.

227.112(1)(b) (b) The agency shall provide for a period for public comment on a proposed guidance document submitted under par. (a), during which any person may submit written comments to the agency with respect to the proposed guidance document. Except as provided in par. (c), the period for public comment shall end no sooner than the 21st day after the date on which the proposed guidance document is published in the register under s. 35.93 (2) (b) 3. im. The agency may not adopt the proposed guidance document until the comment period has concluded and the agency has complied with par. (d).

227.112(1)(c) (c) An agency may hold a public comment period shorter than 21 days with the approval of the governor.

227.112(1)(d) (d) An agency shall retain all written comments submitted during the public comment period under par. (b) and shall consider those comments in determining whether to adopt the guidance document as originally proposed, modify the proposed guidance document, or take any other action.

227.112(2) (2) An agency shall post each guidance document that the agency has adopted on the agency’s Internet site and shall permit continuing public comment on the guidance document. The agency shall ensure that each guidance document that the agency has adopted remains on the agency’s Internet site as provided in this subsection until the guidance document is no longer in effect, is no longer valid, or is superseded or until the agency otherwise rescinds its adoption of the guidance document.

227.112(3) (3) A guidance document does not have the force of law and does not provide the authority for implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license. An agency that proposes to rely on a guidance document to the detriment of a person in any proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document. An agency may not use a guidance document to foreclose consideration of any issue raised in the guidance document.

227.112(4) (4) If an agency proposes to act in any proceeding at variance with a position expressed in a guidance document, it shall provide a reasonable explanation for the variance. If an affected person in any proceeding may have relied reasonably on the agency’s position, the explanation must include a reasonable justification for the agency’s conclusion that the need for the variance outweighs the affected person’s reliance interest.

227.112(5) (5) Persons that qualify under s. 227.12 to petition an agency to promulgate a rule may, as provided in s. 227.12, petition an agency to promulgate a rule in place of a guidance document.

227.112(6) (6) Any guidance document shall be signed by the secretary or head of the agency below the following certification: “I have reviewed this guidance document or proposed guidance document and I certify that it complies with sections 227.10 and 227.11 of the Wisconsin Statutes. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is not explicitly required or explicitly permitted by a statute or a rule that has been lawfully promulgated. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is more restrictive than a standard, requirement, or threshold contained in the Wisconsin Statutes.”

227.112(7) (7) 

227.112(7)(a) (a) This section does not apply to guidance documents adopted before July 1, 2019, but on that date any guidance document that has not been adopted in accordance with sub. (1) or that does not contain the certification required under sub. (6) shall be considered rescinded.

227.112(7)(b) (b) This section does not apply to guidance documents or proposed guidance documents of the Board of Regents of the University of Wisconsin System, the Technical College System Board, or the department of employee trust funds.

227.112(8) (8) The legislative council staff shall provide agencies with assistance in determining whether documents and communications are guidance documents that are subject to the requirements under this section.

227.112 History History: 2017 a. 369.