LRB-4312/1
TKK:jld:ph
2009 - 2010 LEGISLATURE
February 23, 2010 - Introduced by Representatives Barca, Dexter, Strachota,
Bernard Schaber, Clark, Zigmunt, Garthwaite, Hilgenberg, Shilling,
Jorgensen, Steinbrink, Kerkman, Smith, Sinicki, Hubler, Berceau and
Turner, cosponsored by Senators Plale, Wirch, Darling, Vinehout, Lassa
and Taylor. Referred to Committee on Jobs, the Economy and Small
Business.
AB767,1,8
1An Act to renumber and amend 560.03 (9);
to amend 15.155 (5), 20.143 (1)
2(kc), 227.114 (7m), 227.14 (2g) (intro.), 227.19 (3m), 227.24 (3m) (intro.), 285.79
3(3) (intro.) and 560.11 (2); and
to create 227.04, 560.038 (title) and (1) (intro.),
4560.038 (1) (a), (b), (c), (d) and (e) and 560.038 (3) of the statutes;
relating to:
5changes to the membership of the Small Business Regulatory Review Board,
6notification to the Small Business Regulatory Review Board of bills with an
7economic impact on small businesses, and the role of the Office of the Small
8Business Advocate in the Department of Commerce.
Analysis by the Legislative Reference Bureau
This bill makes the following changes to the membership of the Small Business
Regulatory Review Board (board), the considerations to be made for small businesses
by agencies engaging in administrative rule making, the responsibilities of small
business regulatory coordinators in each agency, and the structure and functions of
the small business ombudsman clearinghouse in the Department of Commerce
(Commerce):
Small Business Regulatory Review Board
Currently, the membership of the board in Commerce consists of six
representatives of small businesses, the chairpersons of the senate and assembly
committees concerned with small businesses, and one representative each from the
departments of Administration; Agriculture, Trade and Consumer Protection;
Children and Families; Commerce; Health Services; Natural Resources; Regulation
and Licensing; Revenue; and Workforce Development. Current law defines "small
business" as a business entity, including its affiliates, which is independently owned
and operated and not dominant in its field, and which employs 25 or fewer full-time
employees or which has gross annual sales of less than $5,000,000.
The board serves small businesses by reviewing administrative rules proposed
by and emergency rules promulgated by agencies to determine the fiscal effect of the
rules on small businesses. The board also reviews whether an agency has prepared
an analysis for each proposed rule and emergency rule, sufficiently considered the
effect of a proposed rule on small businesses, and complied with certain other
procedural and substantive requirements as it prepared the proposed rule or
emergency rule.
This bill eliminates from the board the representatives of all departments and
increases the number of representatives of small businesses on the board to seven.
Rule making: considerations for small businesses
Under current law, each state agency must submit proposed administrative
rules to the Legislative Council for review, prepare an analysis of the proposed rule,
and, with certain exceptions, provide notice of and a public hearing regarding the
proposed rule. If an agency determines that a proposed administrative rule may
have a significant economic impact on small businesses, the agency must forward a
copy of the proposed rule to the board.
Under current law, for each proposed rule that will have an effect on small
businesses, an agency must prepare a final regulatory flexibility analysis that
includes certain information, including a summary of issues raised by small
businesses and any changes made to the proposed rule as a result of information and
provided by small businesses. A final regulatory flexibility analysis is not required
if the agency determines that the rule will not have a significant economic impact on
a substantial number of small businesses.
Under certain circumstances, an agency may promulgate an emergency rule
without complying with the notice and public hearing requirements. An agency
must file a promulgated emergency rule with the Legislative Reference Bureau
(LRB). If the emergency rule may have a significant economic impact on small
businesses, the agency must submit a copy of the rule to the board on the same day
it files the rule with the LRB.
With certain exceptions, a rule promulgated by an agency takes effect on the
first day of the month commencing after the day on which the rule is promulgated.
Generally, an emergency rule takes effect upon publication. A rule that has a
significant economic impact on small businesses applies to small businesses no
earlier that the first day of the third month beginning after the date of publication.
This bill requires an agency to forward a copy of a proposed administrative rule
or an emergency rule to the board if the rule may have an economic impact on small
businesses, and not just a significant economic impact. The bill directs the board to
determine whether a proposed rule or emergency rule will have a significant
economic impact on a substantial number of small businesses. If the board
determines that a proposed rule or emergency rule will have a significant economic
impact on a substantial number of small businesses, the board may submit
suggested changes in the proposed rule to minimize the economic impact of the
proposed rule or emergency rule, or may recommend that the proposed rule, but not
the emergency rule, be withdrawn. A final regulatory flexibility analysis is not
required under the bill if the board, and not the agency, determines that the rule will
not have a significant economic impact on small businesses.
Administrative law: considerations for small business
This bill requires each agency, to the extent possible, to do all of the following:
1. Provide assistance to small businesses to help small businesses comply with
rules promulgated by the agency.
2. Establish reduced fines and alternative enforcement mechanisms for minor
violations of administrative rules by small businesses.
3. Consider the use of a written warning or alternative penalty against a small
business found to be in violation of a rule if the small businesses made a good faith
effort to comply with the rule and the rule does not pose a threat to public health,
safety, or welfare or to the environment or the workplace.
Small business regulatory coordinators and the Office of the Small Business
Advocate
Under current law, each agency must designate a small business regulatory
coordinator to act as a point of contact within the agency for regulatory issues
involving small businesses. Current law defines "agency" to mean a board,
commission, committee, department, or officer in the state government, except the
governor, a district attorney, or a military or judicial officer. Also under current law,
Commerce must establish and operate a small business ombudsman clearinghouse
to facilitate communication between state agencies and small businesses.
This bill changes the name of the ombudsman clearinghouse to the Office of the
Small Business Advocate (office). The bill requires each agency to designate one
employee to serve as the agency's small business regulatory coordinator and clarifies
that the small business regulatory coordinator of each agency must work with the
office to facilitate communication between small businesses and state agencies.
The bill requires Commerce to model the office on the best practices of state and
federal small business advocate organizations, to take a proactive role in
maintaining and helping small businesses to grow, and to have the goal of creating
jobs and a healthy small business sector. The bill also requires Commerce to
designate at least one full-time employee to serve as staff to the office. The staff of
the office must, in turn, serve as staff to the board and work together with the small
business regulatory coordinator of each agency.
Also under the bill, the office must, upon the written request of a small business
against which an agency has initiated an enforcement action, review and investigate
the circumstances of the enforcement action and make recommendations regarding
alternative enforcement to the enforcing agency. The office must annually report to
the governor and to the legislature the role of the office in providing regulatory relief
to and promoting regulatory compliance by small businesses.
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:
AB767, s. 1
1Section
1. 15.155 (5) of the statutes is amended to read:
AB767,4,152
15.155
(5) Small business regulatory review board. There is created a small
3business regulatory review board, attached to the department of commerce under s.
415.03. The board shall consist of
a representative of the department of
5administration; a representative of the department of agriculture, trade and
6consumer protection; a representative of the department of children and families; a
7representative of the department of commerce; a representative of the department
8of health services; a representative of the department of natural resources; a
9representative of the department of regulation and licensing; a representative of the 10department of revenue; a representative of the department of workforce
11development; 6 7 representatives of small businesses, as defined in s. 227.114 (1),
12who shall be appointed for 3-year terms
;, and the chairpersons of one senate and one
13assembly committee concerned with small businesses, appointed as are members of
14standing committees.
The representatives of the departments shall be selected by
15the secretary of that department.
AB767, s. 2
16Section
2. 20.143 (1) (kc) of the statutes is amended to read:
AB767,5,217
20.143
(1) (kc)
Clean air act compliance assistance. From moneys transferred
18from the appropriation account under s. 20.370 (2) (bg), the amounts in the schedule
19for assisting the department of natural resources in administering the small
20business stationary source technical and environmental compliance assistance
21program under s. 285.79 and for expenses related to serving as
ombudsman an
1advocate for small business stationary sources as required under s.
560.03 (9) 2560.038 (2).
AB767, s. 3
3Section
3. 227.04 of the statutes is created to read:
AB767,5,5
4227.04 Considerations for small business. (1) In this section, "small
5business" has the meaning given in s. 227.114 (1).
AB767,5,7
6(2) Consistent with the requirements under s. 895.59 and, to the extent
7possible, each agency shall do all of the following:
AB767,5,98
(a) Provide assistance to small businesses to help small businesses comply with
9rules promulgated by the agency.
AB767,5,1210
(b) Establish, by rule, reduced fines and alternative enforcement mechanisms
11for minor violations of administrative rules made by small businesses. The rules
12promulgated under this subdivision shall include a definition of "minor violation."
AB767,5,1513
(c) In deciding whether to impose a fine against a small business found to be
14in violation of a rule, consider the appropriateness of a written warning, reduced fine,
15or alternative penalty if all of the following apply:
AB767,5,1616
1. The small business has made a good faith effort to comply with the rule.
AB767,5,1817
2. The rule violation does not pose a threat to public health, safety, or welfare,
18or to the environment or the workplace.
AB767, s. 4
19Section
4. 227.114 (7m) of the statutes is amended to read:
AB767,6,220
227.114
(7m) The Each agency shall designate
a at least one employee to serve
21as the small business regulatory coordinator
to
for the agency, and shall publicize
22that employee's electronic mail address and telephone number. The small business
23regulatory coordinator shall act as a contact person for small business regulatory
24issues
for the agency and shall
publicize that person's electronic mail address and
1telephone number cooperate with the staff of the office of the small business advocate
2under s. 560.038 to accomplish the objectives of this subsection and s. 560.038.
AB767, s. 5
3Section
5. 227.14 (2g) (intro.) of the statutes is amended to read:
AB767,7,34
227.14
(2g) Review by the small business regulatory review board. (intro.)
5On the same day that an agency submits to the legislative council staff under s.
6227.15 a proposed rule that may have
a significant
an economic impact on small
7businesses, the agency shall submit the proposed rule, the analysis required under
8sub. (2), and a description of its actions taken to comply with s. 227.114 (2) and (3)
9to the small business regulatory review board. The board may use cost-benefit
10analysis to determine the fiscal effect of the rule on small businesses and shall
11determine
whether the proposed rule will have a significant impact on a substantial
12number of small businesses and whether the agency has complied with subs. (2) and
13(2m) and s. 227.114 (2) and (3). Except as provided in subs. (1m) and (1s), each
14proposed rule shall include provisions detailing how the rule will be enforced. If the
15board determines that the rule does not include an enforcement provision or that the
16agency failed to comply with sub. (2) or (2m) or s. 227.114 (2) or (3), the board shall
17notify the agency of that determination and ask the agency to comply with any of
18those requirements.
If the board determines that the proposed rule will have a
19significant economic impact on a substantial number of small businesses, the board
20may submit to the agency suggested changes in the proposed rule to minimize the
21economic impact of the proposed rule, or may recommend the withdrawal of the
22proposed rule under sub. (6). In addition, the board may submit
other suggested
23changes in the proposed rule to the agency, including proposals to reduce the use of
24cross-references in the rule. The board shall send a report of
those suggestions any
25suggested changes and of any notice of failure to include enforcement provisions or
1to comply with sub. (2) or (2m) or s. 227.114 (2) or (3) to the legislative council staff.
2The notification to the agency may include a request that the agency do any of the
3following:
AB767, s. 6
4Section
6. 227.19 (3m) of the statutes is amended to read:
AB767,7,85
227.19
(3m) Analysis not required. The final regulatory flexibility analysis
6specified under sub. (3) (e) is not required for any rule if the
agency, after complying
7with s. 227.114 (1) to (5), board determines that the rule will not have a significant
8economic impact on a substantial number of small businesses.
AB767, s. 7
9Section
7. 227.24 (3m) (intro.) of the statutes is amended to read:
AB767,8,210
227.24
(3m) Review by the small business regulatory review board. (intro.)
11On the same day that the agency files a rule under sub. (3) that may have
a
12significant an economic impact on small businesses, as defined in s. 227.114 (1), the
13agency shall submit a copy of the rule to the small business regulatory review board.
14The board may use cost-benefit analysis to determine the fiscal effect of the
15emergency rule on small businesses and shall determine
whether the emergency
16rule will have a significant economic impact on a substantial number of small
17businesses and whether the agency complied with ss. 227.114 (2) and (3) and 227.14
18(2m).
If the board determines that the emergency rule will have a significant
19economic impact on a substantial number of small businesses, the board may submit
20to the agency and to the legislative council staff suggested changes in the emergency
21rule to minimize the economic impact of the emergency rule. If the board determines
22that the agency failed to comply with s. 227.114 (2) or (3) or 227.14 (2m), the board
23shall notify the agency of that determination and ask the agency to comply with any
24of those provisions. In addition, the board may submit
other suggested changes in
1the proposed rule to the agency and may include a request that the agency do any
2of the following:
AB767, s. 8
3Section
8. 285.79 (3) (intro.) of the statutes is amended to read:
AB767,8,84
285.79
(3) Assistance program. (intro.) The department shall, in cooperation
5with the
office of the small business
ombudsman clearinghouse advocate under s.
6560.03 (9) 560.038, develop and administer a small business stationary source
7technical and environmental compliance assistance program. The program shall
8include all of the following:
AB767, s. 9
9Section
9. 560.03 (9) of the statutes is renumbered 560.038 (2) and amended
10to read:
AB767,8,2511
560.038
(2) Establish The department shall establish and operate
a small
12business ombudsman clearinghouse for business and industry the office to facilitate
13the flow of information
from between other state and federal agencies
and business
14and industry, to assist state agencies in establishing methods to encourage the
15participation of small businesses in rule making under s. 227.114 (4)
, and to serve
16as ombudsman for small business stationary sources
, as defined in s. 285.79 (1), in
17connection with the implementation of the federal clean air act,
42 USC 7401 to
187671q.
The office shall be modeled on the best practices of both state and federal
19small business advocate organizations, shall take a proactive role in maintaining
20and helping small businesses grow economically, and shall have the goal of creating
21jobs and a healthy small business sector. The office shall be staffed by at least one
22full-time employee of the department. The staff of the office shall serve as staff to
23the small business regulatory review board and shall cooperate with the small
24business regulatory coordinator designated by each agency under s. 227.114 (7m) to
25accomplish the objectives of this section, as appropriate.
AB767, s. 10
1Section
10. 560.038 (title) and (1) (intro.) of the statutes are created to read:
AB767,9,3
2560.038 (title)
Office of the small business advocate. (1) (intro.) In this
3section:
AB767, s. 11
4Section
11. 560.038 (1) (a), (b), (c), (d) and (e) of the statutes are created to read:
AB767,9,55
560.038
(1) (a) "Agency" has the meaning given in s. 227.01 (1).
AB767,9,66
(b) "Office" means the office of the small business advocate.
AB767,9,77
(c) "Small business" has the meaning given in s. 227.114 (1).
AB767,9,98
(d) "Small business regulatory coordinator" means the employee of an agency
9designated by the agency as required under s. 227.114 (7m).
AB767,9,1010
(e) "Small business stationary sources" has the meaning given in s. 285.79 (1).
AB767, s. 12
11Section
12. 560.038 (3) of the statutes is created to read:
AB767,9,1212
560.038
(3) The office shall do all of the following:
AB767,9,1813
(a) Upon the written request of a small business against which an agency has
14initiated an enforcement action that may, in the opinion of the small business, cause
15unnecessary hardship to the small business, review and investigate the
16circumstances of the enforcement action and prepare recommendations regarding
17alternative penalties to be imposed upon the small business that will, in the opinion
18of the office, achieve regulatory compliance by the small business.
AB767,9,2019
(b) Submit to the small business regulatory coordinator of the agency initiating
20the enforcement action under par. (a) all of the following:
AB767,9,2121
1. A copy of the written request submitted to the office under par. (a).
AB767,9,2222
2. Any recommendations prepared by the office under par. (a).
AB767,9,2523
3. A statement requesting that the small business regulatory coordinator
24submit to the office within 45 days after receipt of the statement a written response
25describing the enforcement action taken by the agency against the small business
1and whether any considerations were made for the small business as a result of the
2recommendations made under subd. 2.
AB767,10,33
(c) Annually do all of the following:
AB767,10,64
1. Compile the written requests received by the office under par. (a), the
5submissions made by the office under par. (b), and any communications received
6from enforcing agencies under par. (b).
AB767,10,107
2. Analyze and evaluate the information under subd. 1. and any other relevant
8information to determine regulatory enforcement trends and the efficacy of the office
9in providing regulatory relief to and promoting regulatory compliance by small
10businesses.