227.01 Definitions. In this chapter:

(1) “Agency" means a board, commission, committee, department or officer in the state government, except the governor, a district attorney or a military or judicial officer.

(2) “Code," when used without further modification, means the Wisconsin administrative code under s. 35.93.

(3) “Contested case" means an agency proceeding in which the assertion by one party of any substantial interest is denied or controverted by another party and in which, after a hearing required by law, a substantial interest of a party is determined or adversely affected by a decision or order. There are 3 classes of contested cases as follows:

(a) A “class 1 proceeding" is a proceeding in which an agency acts under standards conferring substantial discretionary authority upon it. “Class 1 proceedings" include rate making, price setting, the granting of a certificate of convenience and necessity, the making, review or equalization of tax assessments and the granting or denial of a license.

(b) A “class 2 proceeding" is a proceeding in which an agency determines whether to impose a sanction or penalty against a party. “Class 2 proceedings" include the suspension or revocation of or refusal to renew a license because of an alleged violation of law. Any proceeding which could be construed to be both a class 1 and a class 2 proceeding shall be treated as a class 2 proceeding.

(c) A “class 3 proceeding" is any contested case not included in class 1 or class 2.

(3m)

(a) “Guidance document" means, except as provided in par. (b), any formal or official document or communication issued by an agency, including a manual, handbook, directive, or informational bulletin, that does any of the following:

1. Explains the agency's implementation of a statute or rule enforced or administered by the agency, including the current or proposed operating procedure of the agency.

2. Provides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency, if that guidance or advice is likely to apply to a class of persons similarly affected.

(b) “Guidance document" does not include any of the following:

1. A rule that has been promulgated and that is currently in effect or a proposed rule that is in the process of being promulgated.

2. A standard adopted, or a statement of policy or interpretation made, whether preliminary or final, 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.

3. Any document or activity described in sub. (13) (a) to (zz), except that “guidance document" includes a pamphlet or other explanatory material described under sub. (13) (r) that otherwise satisfies the definition of “guidance document" under par. (a).

4. Any document that any statute specifically provides is not required to be promulgated as a rule.

5. A declaratory ruling issued under s. 227.41.

6. A pleading or brief filed in court by the state, an agency, or an agency official.

7. A letter or written legal advice of the department of justice or a formal or informal opinion of the attorney general, including an opinion issued under s. 165.015 (1).

8. Any document or communication for which a procedure for public input, other than that provided under s. 227.112 (1), is provided by law.

9. Any document or communication that is not subject to the right of inspection and copying under s. 19.35 (1).

(4) “Hearing examiner" means a person designated under s. 227.43 or 227.46 (1) to preside over a contested case.

(5) “License" includes all or any part of an agency permit, certificate, approval, registration, charter or similar form of permission required by law, except a motor vehicle operator's license issued under ch. 343, a vehicle registration certificate issued under ch. 341, a license required primarily for revenue purposes, a hunting or fishing approval or a similar license where issuance is merely a ministerial act.

(6) “Licensing" means an agency process relating to the granting, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license.

(7) “Official of the agency" means a secretary, commissioner or member of a board of an agency.

(8) “Party" means a person or agency named or admitted as a party in a contested case.

(8m) “Permanent rule" means a rule other than a rule promulgated under s. 227.24.

(9) “Person aggrieved" means a person or agency whose substantial interests are adversely affected by a determination of an agency.

(10) “Proposed rule" means all or any part of an agency's proposal to promulgate a rule.

(11) “Register" means the Wisconsin administrative register under s. 35.93.

(13) “Rule" means a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency. “Rule" includes a modification of a rule under s. 227.265. “Rule" does not include, and s. 227.10 does not apply to, any action or inaction of an agency, whether it would otherwise meet the definition under this subsection, that:

(a) Concerns the internal management of an agency and does not affect private rights or interests.

(b) Is a decision or order in a contested case.

(c) Is an order directed to a specifically named person or to a group of specifically named persons that does not constitute a general class, and which is served on the person or persons to whom it is directed by the appropriate means applicable to the order. The fact that a named person serves a group of unnamed persons that will also be affected does not make an order a rule.

(d) Relates to the use of highways and is made known to the public by means of signs or signals.

(e) Relates to the construction or maintenance of highways or bridges, except as provided in ss. 84.11 (1r) and 85.025.

(f) Relates to the curriculum of, admission to or graduation from a public educational institution, as determined by each institution.

(g) Relates to the use of facilities of a public library.

(h) Prorates or establishes priority schedules for state payments under s. 16.53 (10) (a) or temporarily reallocates state moneys under s. 20.002 (11).

(i) Relates to military or naval affairs.

(j) Relates to the form and content of reports, records or accounts of a state, county or municipal officer, institution or agency.

(k) Relates to expenditures by a state agency, the purchase of materials, equipment or supplies by or for a state agency, or printing or duplicating of materials for a state agency.

(km) Establishes policies for information technology development projects as required under s. 16.971 (2) (Lg).

(kr) Establishes policies for information technology development projects as required under s. 36.59 (1) (c).

(L) Establishes personnel standards, job classifications or salary ranges for state, county or municipal employees in the classified civil service.

(Lm) Relates to the personnel systems developed under s. 36.115.

(Lr) Determines what constitutes high-demand fields for purposes of s. 38.28 (2) (be) 1. b.

(m) Determines water levels.

(n) Fixes or approves rates, prices or charges, unless a statute specifically requires them to be fixed or approved by rule.

(o) Determines the valuation of securities held by an insurer.

(p) Is a statistical plan relating to the administration of rate regulation laws under ch. 625 or 626.

(pm) Relates to setting fees under s. 655.27 (3) for the injured patients and families compensation fund or setting fees under s. 655.61 for the mediation fund.

(q) Is a form the content or substantive requirements of which are prescribed by a rule or a statute.

(r) Is a pamphlet or other explanatory material that is not intended or designed as interpretation of legislation enforced or administered by an agency, but which is merely informational in nature.

(rm) Is a form prescribed by the attorney general for an accounting under s. 846.40 (8) (b) 2.

(rs) Relates to any form prescribed by the department of transportation under s. 348.03 (1) or 348.27 (19) (d) 1. or procedure prescribed under s. 348.27 (19) (d) 2.

(rt) Is a general permit issued under s. 30.206 or 30.2065.

(ru) Is a wetland general permit issued under s. 281.36 (3g).

(s) Prescribes or relates to a uniform system of accounts for any person, including a municipality, that is regulated by the office of the commissioner of railroads or the public service commission.

(u) Relates to computing or publishing the number of nursing home beds to be added in each health planning area under s. 150.33 (1).

(um) Lists over-the-counter drugs covered by Medical Assistance under s. 49.46 (2) (b) 6. i. or 49.471 (11) (a).

(v) Establishes procedures used for the determination of allocations as charges to agencies under s. 20.865 (1) (fm).

(w) Establishes rates for the use of a personal automobile under s. 20.916 (4) (a).

(x) Establishes rental policies for state-owned housing under s. 16.004 (8).

(xm) Establishes camping fees within the fee limits specified under s. 27.01 (10) (d) 1. or 2.

(y) Prescribes measures to minimize the adverse environmental impact of bridge and highway construction and maintenance.

(yc) Adjusts the total cost threshold for highway projects under ss. 84.013 (2m) and 84.0145 (4).

(yd) Relates to any form prescribed by the department of transportation under s. 218.0171 (8).

(yg) Relates to standards for memorial highway designations authorized under s. 84.1045.

(yj) Relates to standards for memorial highway designations authorized under s. 84.1042.

(yk) Relates to standards for memorial highway designations authorized under s. 84.1038.

(ym) Establishes conditions for a waiver to allow the burning of brush or other woody material under s. 287.07 (7) (e).

(yo) Establishes procedures under s. 39.86 (3) (c) or fees under s. 39.86 (5).

(yp) Lists exempt institutions under s. 39.87 (2).

(ys) Establishes a technical standard for abating nonpoint source water pollution under s. 281.16 (2) or (3) (c).

(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.

(yw) Establishes additional services as bank services as provided in s. 221.1101 (6).

(yx) Relates to adjustments under s. 202.12 (8), exemptions under s. 202.12 (6m) (e), or the alternative registration of professional employer organizations under s. 202.22 (7) (b).

(yy) Expands the list of services that a credit union service organization may provide, as provided in s. 186.11 (4) (bd).

(z) Defines or lists nonattainment areas under s. 285.23.

(za) Is a manual prepared under s. 227.15 (7) to provide agencies with information on drafting, promulgation and legislative review of rules.

(zb) Establishes a list of substances in groundwater and their categories under s. 160.05.

(zc) Establishes a database under s. 292.31.

(zd) Establishes procedures for oil inspection fee collection under s. 168.12.

(ze) Relates to establishing features of and procedures for lottery games, under s. 565.27 (1).

(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.

(zg) Designates under s. 30.41 the lower Wisconsin state riverway.

(zh) Implements the standard for the lower Wisconsin state riverway as required under s. 30.455 (2) (c).

(zi) Lists responsible units, as defined in s. 287.01 (9), with an effective recycling program under s. 287.11 (3).

(zj) Establishes continuing educational requirements for real estate brokers and salespersons under s. 452.05 (1) (d).

(zk) Are guidelines issued under s. 440.035 (2m) (b).

(zn) Establishes criteria and standards for certifying instructors for the trapper education program.

(zp) Establishes water quality objectives for priority watersheds or priority lakes under s. 281.65 (4) (dm).

(zq) Designates the Kickapoo valley reserve under s. 41.41 (2).

(zr) Relates to the administration or implementation of a cooperative agreement under s. 28.15.

(zs) Establishes geographical areas under s. 49.143 for the administration of Wisconsin works under ss. 49.141 to 49.161.

(zt) Establishes a rate increase factor under s. 196.193 (2) or an overall rate of return under s. 196.193 (3).

(zu) Establishes standards under subch. IX of ch. 254.

(zv) Specifies the form required under s. 196.137 (4).

(zw) Determines whether a state law is reciprocal under s. 221.0901 (8) (e) 2. or 221.0904 (3) (b).

(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.

(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.

(zz) Adjusts, under s. 551.206, the amounts specified in s. 551.202 (26) (c) 1. a. and b. and (27) (c) 1. a. and b.

(14) “Working day" means any day except Saturday, Sunday and holidays designated in s. 230.35 (4) (a).

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.

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).

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).

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.

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).

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).

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).

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).

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.

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.

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.

Regulatory Reform: Moving Policymaking from State Agencies to the Legislature. Jensen. Wis. Law. Oct. 2018.