Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 682, 10/31/2012

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 12-043 CR 12-043

(DATCP Docket No. 12-R-03)

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) will hold a public hearing on a proposed rule revising Chapter ATCP 1 relating to discretion in enforcement of rule violations by small businesses.

DATCP will hold the public hearing at the time and place shown below:

Hearing Information

Date:   Tuesday, November 13, 2012

Time:   9:00 a.m. to 11:00 a.m.

Location:   Room 456
  Department of Agriculture, Trade and
  Consumer Protection
  2811 Agriculture Drive
  Madison, WI 53718-6777

Accessibility

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by November 12, 2011, by writing to Karen Schultz, Office of Legal Counsel, P.O. Box 8911, Madison, WI 53708-8911; or by emailing karen.schultz@ wisconsin.gov or by telephone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is handicap accessible.

Written Comments

DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearing, the hearing record will remain open until November 27, 2012 for additional written comments. Comments may be sent to the Office of Legal Counsel at the address below, or to [e-mail], or to http://adminrules. wisconsin.gov.

Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address below, or by email to [e-mail], or by telephone at [phone].

Copies of Documents

You can obtain a free copy of this hearing draft rule and related documents including the economic impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Office of Legal Counsel, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or by emailing [e-mail]. Copies will also be available at the hearing. To view the hearing draft rule online, go to: http://adminrules.wisconsin.gov.

Analysis prepared by the Public Service Commission of Wisconsin

This rule complies with the requirements of s. 227.04 (2) (b), Stats., created by 2011 Wisconsin Act 46, which requires each state agency to “establish by rule, reduced fines and alternative enforcement mechanisms for minor violations of administrative rules made by small businesses," and which requires that the rule include a definition of “minor violation."

Statutes Interpreted

Sections 227.04 (2) (b) and 895.59, Stats.

Statutory Authority

Sections. 227.04 (2) (b) and 895.59 (2), Stats.

Explanation of Statutory Authority

Section 227.04 (2) (b), Stats., provides that each state agency shall “establish by rule, reduced fines and alternative enforcement mechanisms for minor violations of administrative rules made by small businesses", and requires that the rule include a definition of “minor violation." Section 895.59 (2), Stats., provides that “each state 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 and guidelines against a small business."

Related Statutes and Rules

In compliance with s. 895.59, Stats., which was created by 2003 Wisconsin Act 145, DATCP adopted ATCP Ch. 1, Subch. VII which identifies the discretion DATCP will use in enforcing rule violations against small businesses. Section 227.04, Stats., is closely related to s. 895.59, Stats. This rule making will make those changes necessary to comply with the new requirements created by s. 227.04 (2) (b), Stats., and will conform to the requirements of s. 895.59 (2), Stats.

Plain Language Analysis

Background

DATCP adopted Ch. ATCP 1, Subch. VII, in November, 2006, to comply with the requirements of s. 895.59, Stats. Prior to the creation of s. 895.59, Stats., and the DATCP rules subchapter, DATCP exercised much the same discretion as is provided in the statute and rule when determining if and how to enforce regulation violations committed by small businesses. For example, DATCP has always considered the seriousness of the violation, the risk of harm to the public and the history of compliance when making enforcement determinations.

Rule Content

General

This rule does all of the following:

•   Creates a definition of “minor violation" for certain violations of department rules by small businesses.

•   Provides that the department may exercise the discretion to forego formal sanctions or to seek reduced sanctions when a minor violation of department rules has been committed by a small business.

Fiscal Impact

This rule will not have a significant fiscal impact on state government. DATCP enforcement practice has exercised much the same discretion as is directed by s. 227.04 (2) (b), Stats., both before and after adopting the current rule as required by s. 895.59 (2), Stats., when determining if, and how, to enforce regulation violations committed by small businesses. For example, DATCP has always considered the seriousness of the violation, the risk of harm to the public and the history of compliance when making enforcement determinations. This rule will have no fiscal effect on local governments.

Business Impact

This rule will not increase any costs for businesses. The rule may produce an economic benefit for small businesses that commit minor violations of DATCP regulations when discretion is exercised to forego formal sanctions or to seek reduced sanctions.

Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to [e-mail], or by telephone at [phone].

Economic Impact

This rule will not have an economic impact upon the state, any business sector, citizens, utility rate payers or any geographical area in the state.

Environmental Impact

This rule will not have any environmental impact.

Federal and Surrounding State Programs

Federal Programs

Federal agencies exercise similar enforcement discretion.

Surrounding State Programs

Agencies in the surrounding states exercise similar enforcement discretion.

Data and Analytical Methodologies

Each DATCP division contributed to the analysis of the effect of the proposed rule.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

Supporting documentation includes files of enforcement activities in DATCP and the DATCP compliance manual.

DATCP Contact

Questions and comments related to this rule may be directed to:

Dennis Fay