227.04 Considerations for small business.

(1) In this section:

(a) “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.

(b) “Small business" has the meaning given in s. 227.114 (1).

(2m)

(a) Each 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 against a small business that has committed a minor violation. The rule promulgated under this subsection may include the reduction or waiver of penalties for a voluntary disclosure, by a small business, of actual or potential violations of rules.

(b) The rule promulgated under this subsection shall 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 violation. The rule shall consider the following criteria for allowing discretion in the enforcement of the rule and the assessment of a penalty, including a forfeiture, fine, or interest:

1. The difficulty and cost of compliance with the rule by the small business.

2. The financial capacity of the small business, including the ability of the small business to pay the amount of any penalty that may be imposed.

3. The compliance options available, including options for achieving voluntary compliance with the rule.

4. The level of public interest and concern.

5. The opportunities available to the small business to understand and comply with the rule.

6. Fairness to the small business and to other persons, including competitors and the public.

(c) The rule promulgated under this subsection shall specify the situations in which the agency will not allow discretion in the enforcement of a rule against small businesses that have committed minor violations and shall include all of the following situations in which discretion is not allowed:

1. The violation results in a substantial economic advantage for the small business.

2. The small business has violated the same rule or guideline more than 3 times in the past 5 years.

3. The violation may result in an imminent endangerment to the environment, or to public health or safety.

(d) A rule promulgated under this subsection applies to minor violations committed after the effective date of the rule.

(3) Consistent with the requirements under sub. (2m) and, to the extent possible, each agency shall do all of the following:

(a) Provide assistance to small businesses to help small businesses comply with rules promulgated by the agency.

(c) In deciding whether to impose a fine against a small business found to be in violation of a rule, consider the appropriateness of a written warning, reduced fine, or alternative penalty if all of the following apply:

1. The small business has made a good faith effort to comply with the rule.

2. The rule violation does not pose a threat to public health, safety, or welfare.

(d) Establish methods to encourage the participation of small businesses in rule making under s. 227.114 (4).

(4) Each agency shall fully document every instance in which it made the decision to utilize discretion in penalizing businesses as provided in this section, including the reasons for its decision, and shall keep records of those instances on file for not fewer than 5 years.

History: 2011 a. 46; 2013 a. 296 ss. 1 to 7g, 9, 11, 12g, 13.