2003 - 2004 LEGISLATURE
April 9, 2003 - Introduced by Senators Welch, Schultz, Roessler, Reynolds,
Stepp, Brown, Kanavas, S. Fitzgerald, Lazich and Leibham, cosponsored by
Representatives McCormick, J. Fitzgerald, Suder, Krawczyk, Friske,
Vrakas, Gunderson, Hundertmark, Seratti, Pettis, Albers, Stone, Hines,
Musser, Bies, Hahn, Wieckert, Underheim, Nischke, Staskunas, Ladwig,
Kreibich, Olsen, Van Roy, Plale, Ziegelbauer, J. Wood, Powers, Schooff,
Ott, Balow and Lassa. Referred to Committee on Homeland Security,
Veterans and Military Affairs and Government Reform.
1An Act to amend
227.114 (1) (a), 227.114 (2) (intro.), 227.485 (2) (c) and 814.245 2
(5) (a) 2.; and to create
15.155 (5), 227.114 (6m), 227.114 (7m), 227.135 (1) (e), 3
227.14 (2m), 227.14 (2t), 227.15 (1m), 227.19 (3r), 227.22 (2) (e), 227.24 (3m), 4
227.30, 227.40 (2) (f) and 895.59 of the statutes; relating to: administrative
5rule making regarding small businesses, data used by administrative agencies
6in preparing proposed rules, increasing attorney fees, creating an Internet site
7for proposed rules, and creating a Small Business Regulatory Review Board.
Analysis by the Legislative Reference Bureau
Under current law, an agency that proposes an administrative rule that affects
small businesses (a business that employs fewer than 25 full-time employes or has
gross annual sales of less than $2,500,000), is required to consider ways to reduce the
impact of the rule on small businesses, including creating less stringent compliance
requirements for small businesses or exempting small businesses from the rule.
Currently, the agency proposing the rule must give small businesses the opportunity
to participate in the rule-making process. Agencies are also currently required to
prepare a regulatory flexibility analysis of any rule that affects a small business,
including a summary of changes made in the rule as a result of suggestions by small
businesses and the estimated costs that small businesses may incur to comply with
the proposed rule.
This bill creates a Small Business Regulatory Review Board and requires an
agency to submit to that board any proposed rule that may have a significant
economic impact on small businesses. The board is authorized to analyze the rule
and notify the proposing agency if the board determines that the agency failed to
consider ways to reduce the proposed rule's impact on small businesses or failed to
properly prepare the regulatory flexibility analysis. The board may suggest ways
that the agency can modify the rule and may return the rule to the agency if the rule
does not detail how the rule will be enforced.
The bill redefines "small business" to include any business with 25 or fewer
employees or with gross annual sales of less than $5,000,000. The bill requires every
agency, in cooperation with the Department of Administration, to ensure the
accuracy, integrity, and consistency of the data that the agency uses when preparing
a proposed rule. The bill gives small businesses the right to seek an injunction
against the imposition of a penalty from an agency resulting from the small
business's action that was in response to inaccurate information provided by the
The bill requires the Joint Legislative Council to create an Internet site that
includes a copy of each proposed rule that is submitted to the council. The site must
be searchable and include a section devoted to proposed rules affecting small
businesses, an electronic address and telephone number of an agency contact for a
rule, the council's report on the proposed rule, the time and place of any public
hearing on the proposed rule, and the place where comments may be submitted
regarding a proposed rule.
The bill requires every state agency to review all of its rules during the next five
years to determine if any of the rules place an unnecessary burden on small
businesses, and to repeal or amend any rules that do so.
The bill also gives immunity from imposition of a penalty to any small business
that voluntarily discloses information to the appropriate agency about a possible
violation of an administrative rule if a number of conditions are met, including the
business making the disclosure within 45 days after learning of the violation,
making a good faith effort to comply with the rule, and cooperating with the agency
in any resulting investigation. The immunity does not apply if the violation resulted
in serious harm or in a substantial economic benefit to the violator which gave the
violator an advantage over its business competitors.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB100, s. 1
15.155 (5) of the statutes is created to read:
15.155 (5) Small business regulatory review board.
There is created a small 3
business regulatory review board, attached to the department of commerce under s.
15.03. The board shall consist of a representative of the department of 2
administration, a representative of the department of agriculture, trade and 3
consumer protection, a representative of the department of commerce, a 4
representative of the department of natural resources, 5 representatives of small 5
businesses, as defined in s. 227.114 (1), who shall be appointed for 3-year terms, and 6
the chairpersons of one senate and one assembly committee concerned with small 7
businesses. The representatives of the departments shall be selected by the 8
secretary of that department.
SB100, s. 2
227.114 (1) (a) of the statutes is amended to read:
(a) In this section, "small business" means a business entity, 11
including its affiliates, which is independently owned and operated and not 12
dominant in its field, and which employs 25 or
full-time employees or 13
which has gross annual sales of less than $2,500,000. For purposes of a specific rule,
14an agency may define small business to include more employees or greater gross
15annual sales if necessary to adapt the rule to the needs and problems of small
16businesses. A "small business" may also be defined in accordance with other
17standards established by an agency by rule $5,000,000
SB100, s. 3
227.114 (2) (intro.) of the statutes is amended to read:
(intro.) When an agency proposes or revises
a rule that may have 20
an effect on small businesses, the agency shall consider each of the following methods 21
for reducing the impact of the rule on small businesses:
SB100, s. 4
227.114 (6m) of the statutes is created to read:
If a small business is subject to a penalty from an administrative 24
agency as the result of an action or omission by the small business in response to 25
inaccurate or inconsistent advice given to the small business by an employee, officer,
or agent of the agency, the small business may commence an action in the circuit 2
court for Dane County for injunctive relief. The circuit court may issue an order 3
enjoining the imposition of the penalty if the court determines that the action or 4
omission of the small business that resulted in the penalty was in response to the 5
agency's inaccurate or inconsistent advice.
SB100, s. 5
227.114 (7m) of the statutes is created to read:
The agency shall designate a small business regulatory 8
coordinator to act as a contact person for small business regulatory issues. The 9
agency shall include in the notice under s. 227.17 the electronic mail address and 10
telephone number of the small business regulatory coordinator and a link to an 11
Internet site that allows a person to review the rule and make comments regarding 12
SB100, s. 6
227.135 (1) (e) of the statutes is created to read:
(e) A description of all of the entities that will be affected by the rule.
SB100, s. 7
227.14 (2m) of the statutes is created to read:
227.14 (2m) Quality of agency data.
Each agency shall, in cooperation with 17
the department of administration, ensure the accuracy, integrity, and consistency of 18
the data that is used when preparing a proposed rule and when completing an 19
analysis of the proposed rule under sub. (2). Each agency shall reduce the amount 20
of cross-references to the statutes in proposed and final rules. A person affected by 21
the proposed rule may submit comments to the agency regarding the accuracy, 22
integrity, or consistency of that data.
SB100, s. 8
227.14 (2t) of the statutes is created to read:
227.14 (2t) Enforcement provisions.
Except as provided in subs. (1m) and (1s), 25
each proposed rule shall include provisions detailing how the rule will be enforced.
If a proposed rule does not include enforcement provisions, the small business 2
regulatory review board may return the rule to the submitting agency for an 3
appropriate enforcement provision.
SB100, s. 9
227.15 (1m) of the statutes is created to read:
227.15 (1m) Internet access to proposed rule.
The joint legislative council 6
shall create and maintain an Internet site that includes a copy of each proposed rule 7
received under sub. (1) in a format that allows the site to be searched using keywords. 8
Each agency shall provide the joint legislative council with the proposed rules and 9
other information needed to comply with this subsection in the format required by 10
the joint legislative council. The Internet site shall include a section devoted to 11
proposed rules affecting small businesses, as defined in s. 227.114 (1). The Internet 12
site shall also include all of the following:
(a) The electronic mail address and telephone number of an agency contact 14
person for each proposed rule.
(b) The material required under s. 227.14 (2), (3), and (4).
(c) The written report of the legislative council staff review of the proposed rule 17
prepared under sub. (2) and any agency comments regarding that report.
(d) The time, date, and place of any public hearing specified in the notice in s. 19
227.17 as soon as that notice is submitted to the revisor of statutes under s. 227.17 20
(e) The place where comments on the proposed rule should be submitted and 22
the deadline for submitting those comments.
SB100, s. 10
227.19 (3r) of the statutes is created to read:
227.19 (3r) Fiscal effect of emergency rule.
On the same day that an agency 25
submits a notice under sub. (2) regarding a proposed rule that may have a significant
economic impact on small businesses, the agency shall submit the proposed rule and 2
the report required under sub. (3) to the small business regulatory review board. The 3
board may use cost-benefit analysis to determine the fiscal effect of the emergency 4
rule on small businesses and shall determine whether the agency has complied with 5
sub. (3) (e) or s. 227.114. If the board determines that the agency failed to comply with 6
sub. (3) (e) or s. 227.114, the board shall notify the agency of that determination and 7
ask the agency to comply with those provisions. In addition, the board may submit 8
suggested changes in the proposed rule to the agency, including proposals to reduce 9
the use of cross-references in the rule. The board shall send a copy of any suggestions 10
and of any notice of failure to comply with sub. (3) (e) or s. 227.114 to each committee 11
to which the proposed rule was referred under sub. (2). The notification of 12
noncompliance may include a request that the agency do any of the following:
(a) Explain why the agency has not incorporated comments received from small 14
businesses regarding the proposed rule.
(b) Verify that the proposed rule does not conflict with, overlap, or duplicate 16
other rules or federal regulations.
(c) Require the inclusion of fee information and fee schedules in the regulatory 18
flexibility analysis, including why fees are necessary and for what purpose the fees 19
will be used.
SB100, s. 11
227.22 (2) (e) of the statutes is created to read:
(e) The rule has a significant economic impact on small businesses, 22
as defined in s. 227.114 (1), in which case the rule applies to small businesses on the 23
first day of the 3rd month commencing after the date of publication.
SB100, s. 12
227.24 (3m) of the statutes is created to read:
227.24 (3m) Review by the small business regulatory review board.
On the 2
same day that the agency files a rule under sub. (3) that may have a significant 3
economic impact on small businesses, as defined in s. 227.114 (1), the agency shall 4
submit a copy of the rule to the small business regulatory review board. The board 5
may use cost-benefit analysis to determine the fiscal effect of the emergency rule on 6
small businesses and shall determine whether the agency complied with s. 227.114 7
or 227.19 (3) (e). If the board determines that the agency failed to comply with s. 8
227.114 or 227.19 (3) (e), the board shall notify the agency of that determination and 9
ask the agency to comply with those provisions. In addition, the board may submit 10
suggested changes in the proposed rule to the agency. The notification of 11
noncompliance may include a request that the agency do any of the following:
(a) Explain why the agency has not incorporated comments received from small 13
businesses regarding the emergency rule.