• any person found guilty of a felony or who is or was in prison for a felony on or after January 1, 2000
• any person who, on or after January 1, 2000, has been found not guilty or not responsible by reason of mental disease or defect for certain sex-related offenses or offenses for failing to provide required biological specimens
• any person who is or was in institutional care on or after January 1, 2000, for a felony or for certain sex-related non-felony offenses or non-felony offenses for failing to provide required biological specimens
• any person who, between January 1, 2000, and April 1, 2015, is found guilty of certain sex-related offenses or offenses for failing to provide required biological specimens
• any person found guilty of a misdemeanor on or after April 1, 2015
Procedures and standards under which DOJ will identify and notify individuals who are required to provide a biological specimen and who have not yet done so.
Procedures and standards for determining whether a person required to provide a biological specimen who has previously provided a specimen is required to provide another specimen.
Procedures and standards governing the submission of biological specimens by law enforcement agencies to the Department of Justice crime laboratories.
Procedures and standards governing the DNA analysis of biological specimens, the maintenance of a data bank of DNA analysis data, and the use of data in the data bank by the Department of Justice crime laboratories.
Procedures and standards governing the destruction of biological samples by the Department of Justice crime laboratories.
Procedures and standards for reimbursing law enforcement and tribal law enforcement agencies for the collection and handling of biological specimens.
Procedures and standards governing access to and use of records of the DNA analysis data bank and the confidentiality of some DNA data bank records
Procedures and standards for submitting biological specimens and data for inclusion in one or more national index systems and for ensuring compliance with any applicable requirements for participating in any such national index systems.
Procedures and standards governing requests from an individual for DNA analysis of the individual's own specimen.
Procedures and standards governing requests from an individual for expungement of the individual's biological specimens and DNA analysis data.
The rules will continue to require the department of corrections, the department of health services, county social services departments, county sheriffs, and law enforcement agencies to cooperate with DOJ in meeting the requirements of the rules.
3. Description of existing policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
In
2013 Wisconsin Act 20 (“Act 20") and
2013 Wisconsin Act 214 (“Act 214"), the State of Wisconsin substantially revised existing statutes related to the requirement that certain persons submit biological specimens to the crime laboratories in DOJ for DNA analysis and that the resulting data be included in a DNA data bank. Acts 20 and 214 expanded the range of categories of persons who are required to submit DNA samples to law enforcement, required courts to order the submission of DNA samples by persons from whom samples were not obtained at the time of arrest or custody, expanded the categories of persons immune from civil or criminal liability arising out of the statutorily-mandated acquisition of DNA samples, authorized certain officials to use reasonable force in obtaining a DNA sample in some circumstances, and expanded the circumstances in which specimens and information in the data bank may or must be expunged.
Acts 20 and 214 also revised the administrative rulemaking requirements imposed on DOJ under s.
165.76 (4), Stats. As revised, the statute requires DOJ to promulgate rules that accomplish a variety of enumerated tasks and that carry out all of DOJ's other duties under s.
165.76, Stats. Acts 20 and 214 also revised some of the statutory requirements related to DNA analysis and the maintenance of the DNA data bank in s.
165.77, Stats. Under s.
165.77 (8), Stats., DOJ is required to promulgate rules to administer that statute, including its revised provisions.
The rules proposed here will not themselves establish new policies, but rather will carry into effect the legislative directives set forth in Acts 20 and 214 by providing specific procedures, time limits, and standards for carrying out various statutorily prescribed policy objectives.
4. Statutory Authority for the Rule (Including the Statutory Citation and Language)
The department of justice shall promulgate rules to do all of the following:
(b) Specify whether an individual who is required under this section or ss.
51.20 (13) (cr),
165.84 (7),
938.21 (1m),
938.30 (2m),
938.34 (15),
970.02 (8),
971.17 (1m) (a),
973.047, or
980.063 to provide a biological specimen for deoxyribonucleic acid analysis must provide a new biological specimen if the crime laboratories already have a biological specimen from the individual or if data obtained from deoxyribonucleic acid analysis of the individual's biological specimen are already included in the data bank under s.
165.77 (3).
(c) Allow a biological specimen, or data obtained from analysis of a biological specimen, obtained under this section, under s.
51.20 (13) (cr),
938.21 (1m),
938.30 (2m),
938.34 (15),
970.02 (8),
971.17 (1m) (a),
973.047, or
980.063, or, if the specimen is required to be analyzed under s.
165.84 (7) (am) 1m., under s.
165.84 (7) (ah), to be submitted for inclusion in an index established under
42 USC 14132(a) or in another national index system.
(d) Provide reimbursement from s.
20.455 (2) (Lm) to a person in charge of a law enforcement agency or tribal law enforcement agency at a rate of $10 per specimen except that, if the department already has a biological specimen, or data obtained from analysis of a biological specimen, from the individual, the department may not reimburse the person in charge of the agency.
(e) Carry out the department's duties under this section.
The department shall promulgate rules to administer this section.
(2) Rule-making authority is expressly conferred as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Section
227.11 (2) (a), Stats., expressly confers on DOJ the general power to determine whether administrative rules interpreting statutory provisions that are to be enforced or administered by DOJ are necessary to effectuate the purpose of those statutory provisions and, if such necessity is found, to promulgate such administrative rules, as long as those rules do not exceed the bounds of correct interpretation of the governing statutes.
DOJ finds that the rules here proposed are necessary to effectuate the statutory objective described in detail above.
DOJ further finds that the rules here proposed:
• do not exceed the bounds of correct interpretation of the pertinent statutes;
• are authorized by those statutes and are not based on authority derived from any other statutory or non-statutory statements or declarations of legislative intent, purpose, findings, or policy;
• are authorized as necessary interpretations of specific statutory requirements and are not based on authority derived from any other general powers or duties of DOJ; and
• do not impose any standards or requirements that are more restrictive than the standards and requirements contained in the pertinent statutes.
5. Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
It is estimated that state employees will spend approximately 800 hours on the rulemaking process for the proposed rules, including research, drafting, and compliance with required rulemaking procedures.
6. Description of all Entities that may be Impacted by the Rule
The interests of those persons who are statutorily required to submit DNA samples to law enforcement will be directly affected by the provisions in the proposed rules governing:
• Procedures and time limits for obtaining and submitting DNA samples.
• Procedures and standards for identifying and notifying individuals who are required to provide a DNA sample but have not yet done so.
• Procedures and standards for determining whether a person who has previously provided a DNA sample may be required to provide another sample.
• Procedures and standards governing access to and use of DNA data bank records and the inclusion of such records in one or more national index systems.
• Procedures and standards governing the destruction of biological samples.
• Procedures and standards governing requests from an individual for DNA analysis of the individual's own specimen.
• Procedures and standards governing requests from an individual for expungement of the individual's DNA samples and data.
The interests of sexual assault victims may be affected by the provisions in the proposed rules governing the handling of DNA samples and data in sexual assault cases.
7. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
The activities regulated by the proposed rules are also affected by the federal statutes and regulations that govern the Combined DNA Index System (“CODIS"), which is the program of support for state and local criminal justice DNA databases operated by the Federal Bureau of Investigation, pursuant to 42 U.S.C. § 14132 and
28 C.F.R. Part 28.
CODIS includes the National DNA Index System (“NDIS"), a national database that contains DNA analysis data contributed by forensic laboratories at the federal, state, and local levels. Under s.
165.76 (4) (c), Stats., DOJ is expressly authorized to submit biological specimens or DNA analysis data for inclusion in NDIS.
Forensic laboratories participating in NDIS are required to be accredited by a nationally recognized forensic science association, to undergo an external audit every two years to demonstrate compliance with quality assurance standards established by the FBI, and to disclose DNA samples or analyses only in accordance with federal privacy requirements. See 42 U.S.C. § 14132(b)(2) and (3). Access to NDIS is subject to cancellation if the quality control and privacy requirements are not met. 42 U.S.C. § 14132(c).
The proposed rules will include procedures and standards for submitting biological specimens and data to NDIS and for ensuring consistency with all applicable federal requirements.
8. Anticipated Economic Impact of Proposed Rules
It is not anticipated that the proposed rules will have any economic impact on non-governmental persons and entities. The proposed rules will impose certain responsibilities on local units of government. However, kits for collecting biological samples will be supplied to local units of government by the state and local units of government will also receive a reimbursement from the state for each biological sample submission. Accordingly, it is anticipated that the proposed rules will not have any net economic impact on local units of government.
9. Contact Person
Assistant Attorney General Thomas C. Bellavia, (608) 266-8690
Natural Resources
Fish, Game, etc., Chs.
1—
(DNR # LE-17-13)
The scope statement was approved by the governor on July 29, 2014.
Rule No.
Relating to
Revisions to law enforcement aids to counties and municipalities under Chapter
NR 50 and section
NR 64.15.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
These will be permanent rules.
2. Detailed Description of the Objective of the Proposed Rule
Make revisions to ss.
NR 50.12 and
50.13, Wis. Adm. Code, and move language from s.
NR 64.15 to ch.
NR 50, Wis. Adm. Code, pertaining to law enforcement aids to counties and municipalities for boat, all-terrain/utility terrain vehicle, and snowmobile patrol units. The proposed revisions will provide consistency and standardization for the state, counties and municipalities in the administration of the law enforcement aids program.
3. Description of the Existing Policies Relevant to the New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
All-Terrain Vehicle (ATV) Patrol Units — s. NR 64.15, Wis. Adm. Code.
• Move this section from ch.
NR 64 to ch.
NR 50, Wis. Adm. Code, to provide one code location for all law enforcement aids to municipalities. Each of the patrol units use the same forms and process for claims for reimbursement.
• Change current references to “all-terrain vehicle" to “all-terrain and/or utility terrain vehicles" to reflect law changes effective July 2012 under
2011 Wis. Act 208.
• Clarification of Definition: Under s.
NR 64.02 (7) “Enforcement" means the detection and prevention of crimes and civil violations, and the arrest of those persons who violate such laws. To qualify for state aids under s.
23.33, Stats., and s.
NR 64.15, Wis. Adm. Code, officers involved in the “enforcement" of s.
23.33, Stats., must meet the requirements in s.
165.85, Stats., at the end of the patrol period and must have the authority to make arrests for the violations of the laws they are employed to enforce.
• Include hours for safety education teaching as a reimbursable cost, consistent with water safety patrol requirements. Allowing safety education teaching hours as exempt hours will allow the patrol units to include all relevant hours on their claim, while keeping the patrol hours as actual hours spent patrolling. A local unit of government may be reimbursed for the actual teaching hours of a law enforcement officer who conducts an authorized department ATV safety education course. Teaching hours are considered “exempt" hours and may not be included in patrol hour totals. Reimbursement will be limited to two (2) ATV Safety education courses per patrol year.
• Salary Schedule: Increase the allowable fringe rate to actual costs up to a maximum of 50% of the reimbursable straight time salary rate to allow the patrol units to more accurately reflect current day practices when calculating fringe rate percentage.
• Salary Schedule: To provide consistency across the three patrol unit types, create a maximum percentage limited to 30% of the total hours claimed for administrative hours that patrols may be reimbursed. To provide consistency across the three patrol unit types and to limit the administrative hours claimed by a patrol unit to ensure patrol units are reimbursed for time spent patrolling vs. administrative tasks, thereby reducing the cost per citation. Examples of Administrative hours: creating arrest reports, daily logs, court time, equipment purchasing/ specifications, preparing claim packet.
• Patrol Hours: Increase the minimum patrols hours required for patrol units to be eligible for a reimbursement from 20 to 40 hours.
• Require Department approval prior to the purchase of capital equipment to ensure consistency across the state.
