Rule-Making Notices
Notice of Hearing
Agriculture, Trade and Consumer Protection
(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 (608) 224-5023. Alternatively, you may contact the DATCP TDD at (608) 224-5058. 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 dennis.fay@wisconsin.gov, 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 keeley.moll@wisconsin.gov, or by telephone at (608) 224-5039.
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 (608) 224-5006 or by emailing dennis.fay@wisconsin.gov. 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 keeley.moll@wisconsin.gov, or by telephone at (608) 224-5039.
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
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone (608) 224-5006
E-Mail: dennis.fay@wisconsin.gov
ADMINISTRATIVE RULES
FISCAL ESTIMATE
AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
Ch. ATCP 1, Subch. VII
Subject
Discretion in enforcement of rule violations by small businesses
Fund Sources Affected
Chapter 20 , Stats. Appropriations Affected
GPR FED PRO PRS SEG SEG-S
None
Fiscal Effect of Implementing the Rule
X No Fiscal Effect
Indeterminate
Increase Existing Revenues
Decrease Existing Revenues
Increase Costs
Could Absorb Within Agency's Budget
Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy
Local Government Units
Specific Businesses/Sectors
Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million?
Yes X No
Policy Problem Addressed by the Rule
This rule complies with the requirements of s. 227.04 (2) (b) created by 2011 Wis. 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".
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
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.
Local Governments
This rule will not impact local governments. Local governments will not have any implementation or compliance costs.
Utility Rate Payers
The rule will have no impact on utility rate payers.
General Public
This rule will have no impact on the general public.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Benefits
This rule may benefit small businesses that commit minor violations of DATCP rules.
Alternatives
Adoption of this rule is required by the provisions of s. 227.04 (2) (b).
Long Range Implications of Implementing the Rule
There are no long range implications.
Compare With Approaches Being Used by Federal Government
Federal agencies exercise similar enforcement discretion.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Agencies in surrounding states exercise similar enforcement discretion.
Comments Received in Response to Web Posting and DATCP Response
No comments were received in response either to the posting on the DATCP external website or the statewide administrative rules website.
Notice of Hearing
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