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.
