Michigan:
There appear to be no rules in Michigan that are like the proposed rule.
Minnesota:
There appear to be no rules in Minnesota that are like the proposed rule.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The Department reviewed statutes that authorize enforcement to determine whether discretionary enforcement could be used and the extent of that discretion.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The rule will have no negative impact on small businesses, financial or otherwise and in fact may financially benefit some small businesses.
This rule will have a slight economic impact on the state. The state will lose some money if fees or fines are not collected, or lesser fees are collected.
11. Effect on Small Business:
This rule will not increase any costs for businesses. The rule may produce an economic benefit for small businesses that commit minor violations of DMA regulations when discretion is exercised to forego formal sanctions or to seek reduced sanctions.
12. Agency Contact Person:
Meg Vergeront
Department of Military Affairs
2400 Wright Street, Suite 103
Madison, WI 53708
General Counsel
608-242-3072
13. Place where comments are to be submitted and deadline for submission:
A public hearing will be held on _____ at _____. Comments may be submitted to the agency contact person listed above or to the Wisconsin Administrative Rules Website at www.adminrules.wisconsin.gov until the day before the hearing. RULE TEXT
SECTION 1. Chapter DMA 3 is created to read: DISCRETIONARY ENFORCEMENT
OF RULES AND GUIDELINES AGAINST SMALL BUSINESSES
DMA 3.01 Authority and purpose.
DMA 3.02 Applicability.
DMA 3.03 Definitions.
DMA 3.04 Use of discretion in enforcement.
DMA 3.05 Limitations on the use of discretion.
DMA 3.01 Authority and purpose. This chapter is promulgated under the authority of
exercise in enforcement actions against small businesses regulated by the department and
the circumstances under which no such discretion will be exercised.
DMA 3.02 Applicability. This chapter applies to the department and small businesses
regulated by the department or affected by department rules.
DMA 3.03 Definitions. In this chapter:
(1) “Department” means the department of military affairs.
(2) “Small business” has the meaning given in § 227.04 (2m), Stats. DMA 3.04 Use of discretion in enforcement.
(1) The department may, in accordance with subs. (2) and (3), waive or reduce a penalty otherwise applicable to a small business if the small business voluntarily discloses an actual or potential violation of a department rule or guideline and requests a waiver or reduction if the department is not prohibited under s. DMA 3.05 from doing so. (2) In exercising discretion under sub. (1), the department will follow the applicable department rule or guideline when taking an enforcement action against a small business, except that, on a case-by-case basis, the department may use discretion to reduce or waive a penalty based on consideration of the history of violations, the type of business, the severity of the violation and its impact on the public’s health safety and welfare, state or federal statutory requirements for enforcement, and any other relevant factor. In determining a reduction in a monetary penalty, the department may consider the small business’s ability to pay.
(3) A reduction or waiver of any penalty may not be inconsistent with any requirements established by state or federal statute or regulation.
DMA 3.05 Limitations on the use of discretion. The department may not exercise discretion under s. DMA 3.04 (1) in the enforcement of a rule or guideline under any of the following circumstances: (1) The department discovers the violation before the small business discloses it.
(2) The violation is disclosed after a department audit or inspection of the small business has been scheduled.
(3) The violation was identified as part of monitoring or sampling requirements that are consistent with the requirements under an existing permit, certificate, or license.
(4) The violation results in a substantial economic advantage for the small business.
(5) The small business has repeatedly violated the same statute, rule, or guideline.
(6) The violation may result in imminent endangerment to the environment or to public health or safety.
(7) A state or federal statute, federal regulation or department rule prohibits the department’s exercise of discretion.
(8) The small business is operating without a certificate, permit, or license.
(9) The small business fails to provide the department with credible and verifiable information that it is a small business.
(10) The violation was willful.
SECTION 2. EFFECTIVE DATE. This rule takes effect on the first day of the month following publication in the Wisconsin administrative register, as provided in § 227.22 (2), Stats.
