3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
2013 Wisconsin Act 296 requires state agencies to promulgate a rule that discloses in advance, the discretion that the state agency will follow in the enforcement of rules against a small business that commits a minor violation of a rule. Under the Act, “small business" means 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. “Minor violation" means a rule violation that does not cause serious harm to the public, is committed by a small business, and the violation is not willful, the violation is not likely to be repeated, there is a history of compliance by the violator, or the small business has voluntarily disclosed the violation.
A rule promulgated under the Act must specify the situations in which discretion in enforcement will be allowed. In promulgating the rule, the state agency must consider a number of criteria for allowing discretion in the enforcement of a rule or assessment of a penalty for a minor violation, including the following:
• The difficulty and cost to a small business of complying with a rule.
• The financial capacity of the small business, including the ability of the small business to pay the amount of the possible penalty.
• The compliance options available.
• The level of public interest and concern.
• The opportunities available to the small business to understand and comply with a rule.
• Fairness to the small business and to others, including competitors and the public. Under the Act, each state agency must document every instance that it utilizes discretion in penalizing a business for a minor rule violation. Furthermore, each state agency must maintain records of those instances for at least five years.
The Act also specifies that a state agency may not exercise discretion in enforcing the following types of rule violations:
•
Minor violations involving a small business that has violated the same rule more than three times in the past five years.
•
Minor violations that result in a substantial economic advantage for the small business.
•
Minor violations that may result in an imminent endangerment to public health or safety.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Sections
227.04 (2m) (a), Stats., directs the department to promulgate a rule by which the agency discloses in advance the discretion the agency will follow in the enforcement of rules against a small business that has committed a minor violation, including the reduction or waiver of penalties for a voluntary disclosure of actual or potential violations of rules by a small business.
Section
227.04 (2m) (b), Stats., directs the department to specify the situations in which the agency will allow discretion in the enforcement of a rule against a small business that has committed a minor violations, and the criteria to be used for allowing discretion in the enforcement of the rule and the assessment of a penalty, including a forfeiture, fine or interest.
Section
227.04 (3), Stats., requires the department to provide assistance to small businesses to help small businesses comply with the rules promulgated by the agency, including the establishment of methods to encourage the participation of small businesses in rulemaking under s.
227.114 (4), Stats. Section
227.04 (3), Stats., also requires the department to consider the appropriateness of written warnings, reduced fines, or alternative penalties if the small business has made a good faith effort to comply with the rule, and the violation does not pose a threat to health, safety, or welfare.
Section
227.04 (4), Stats., requires the department to fully document every instance in which it utilized discretion in penalizing small businesses, including the reasons for its decision. The department is required to keep records of those instances on file for no fewer than 5 years.
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
The Department of Transportation (“DOT") estimates that it will use approximately 500 hours (0.25 FTE staff) to develop this rule. This includes time required for investigation and analysis, rule drafting, preparing related documents, coordinating advisory committee meetings, holding public hearings and communicating with affected persons and groups. DOT will use existing staff to develop this rule.
6. List with Description of all Entities that may be Affected by the Proposed Rule
DOT administers approximately 125 chapters of administrative rules on a variety of disparate topics, making it difficult to exhaustively list all of the entities that might be affected by this rule. In general, the rule may produce an economic benefit for small businesses that commit minor violations of DOT regulations when discretion is exercised to forego formal sanctions or to seek reduced sanctions. Small businesses that comply with administrative rules, large businesses, and individuals, are not directly affected by the rule, but as a result of the rule may be comparatively disadvantaged to small business violators to the extent that those other parties continue to incur costs for regulatory compliance efforts, or suffer competitive disadvantages as result of the small business violations.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
There is no known existing or proposed federal regulation that is intended to address the activities to be regulated by this rule. This rule is required by
2013 Wisconsin Act 296.
8. Anticipated Economic 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 DOT regulations when discretion is exercised to forego formal sanctions or to seek reduced sanctions. The rule may have a corresponding disadvantage for small businesses that comply with administrative rules, to the extent that the non-violating business incurs compliance costs or suffers competitive disadvantage as result of the excused violation. This rule could create a modest disincentive to comply with regulations, or allow small businesses to realize a market share gain as a result of an unenforced rule violation. DOT will attempt to structure the rule in a manner that does not create an economical disadvantage for those businesses that comply with administrative rules.
Contact Person
Paul E. Nilsen, Assistant General Counsel, Department of Transportation, Office of General Counsel; Phone (608) 266-8810
Transportation
The statement of scope was approved by the governor on September 4, 2014.
Rule No.
Relating to
Transportation of school children.
Rule Type
Permanent.
Description of the Objective of the Rule
The stated purpose of this rule is to promote the safe transportation of pupils and other authorized persons in school buses, as defined in s.
340.01 (56) Stats. In addition, ch.
Trans 300 provides specific safety-related standards regarding the design, construction, inspection, and operation of school buses and provides for differing standards for vehicles of varying size and configuration
2013 Wisconsin Act 96 authorized the use of flashing amber lights on school buses before stopping to load or unload students, in addition to flashing red lights. Existing administrative rules do not recognize the use of flashing amber lights, and require the use of only flashing red lights.
Current rules set standards for flashing light assemblies that conflict with national industry standards for new flashing light systems. This rulemaking will update administrative rules to reflect the best practices and manufacturing standards established by industry regarding this lighting system. It appears that several updates to existing rules are necessary to allow the use of technological improvements and equipment requirements that have become accepted practices in the school bus industry. Enhancements to the employer and driver pre-trip reporting requirements will require documentation to include electronic reporting, a system which will improve efficiency.
Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Some of the proposed revisions relate to:
•
Trans 300.81 Authorized Optional Equipment — Mounting of video and audio recorders
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Trans 300.81 Authorized Optional Equipment — Authorized optional equipment (e.g. navigation and passenger detection devices; laptop computers; theft detection devices; storage containers, AED's, blood born pathogen kits, hand sanitizer)
•
Trans 300.39 Emergency Exits and Trans 300.61 Signs and Lettering — Interior and exterior lettering, adding optional and required lettering
•
Trans 300.40
Exhaust System and
49 CFR 393.83 Exhaust System — Additions to the exhaust system requirements to better define acceptable locations of exhaust discharge and maintenance.
•
Trans 300.54 Lights, Lamps and Reflectors and SAE Standard J 887 — Changes to lighting, lamps and reflector requirements. We intend to develop regulations regarding the eight-light warning system, establish a time frame for implementation, clarify flash rate of a strobe warning light and develop language for background color of an eight-light warning system.
•
Trans 300.34 Color — Changes in color and trim color requirements. We intend to remove paint requirements for rub rails and stop arm brackets, and intend to include a black background for back-up lamps. Intend to allow white roof tops as an optional feature.
•
Trans 300.16 (8) and (9) referencing loading stations, Wis. Stat. ss. 348 referencing vehicle requirement to stop for school bus flashing lights, Wis. Stat. ss 349.21 authority to regulate school bus warning lights — changes in warning light activation to an eight-light system.
•
Trans 300.15 Employer Requirements and Trans 300.16 Employee Requirements — Clarify pre-trip inspection and add responsibility requirements for employer and driver, also clarify reporting requirements.
•
Trans 300.59 Seating and Federal Motor Vehicle Safety Standards 222 — Safety belt installation, require compliance with FMVS222 for voluntary safety belt installation.
•
Trans 300.30 Book Racks — Specify location of book racks.
Each of these items has been improved by the school bus equipment industry since the promulgation of Trans 300. Many of these improvements do not conform to the code requirements. Policy alternatives are to disregard these equipment and practice changes, or to modernize the code to allow the use of improved equipment or practices.
Detailed Explanation of Statutory Authority for the Rule, Including the Statutory Citation and Language
Wis Stats., ss.
85.16 (1),
227.11 (2),
110.06( 2), 110.064 (1) (b), 346.48, 346.51 (1) (a), 347.25 (2), 347.40 (2), 347.44, 347.445, 347.447.
Summary And Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
The changes being proposed will conform to any federal regulations that exist in Title 49, Code of Federal Regulations, and to satisfy the Department's safety compliance review completed by FMCSA, as well as applicable industry standards in the Society of Automotive Engineers reference manual.
Description of all of the Entities that may be Affected by the Rule
Wisconsin-based school buses, school districts, school bus operators, school bus manufacturers, general motoring public, pupils and law enforcement will be affected by these changes.
Estimates of the Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
200 hours.
Contact Person
Captain Brian Ausloos, 608-267-3622.
