Comparison with federal regulations
The proposed rule parallels the standards enacted by the DOD Act and makes it clear they are applicable to assistance eligible individuals who are or were entitled to coverage under s.
632.897, Stats., or s.
Ins 3.75, Wis. Adm. Code.
Comparison of similar rules in adjacent states
Illinois: None.
Iowa: None.
Michigan: None.
Minnesota: None.
Factual data and analytical methodologies
This proposed rule is based on, and parallels the DOD Act.
Analysis and supporting documentation used to determine rule's effect on small businesses
The rule imposes no substantial requirements on small employers but would allow discontinued employees of small employer who have group insurance the ability to elect continuation of health insurance coverage.
Small Business Impact
This rule will have little or no negative effect on small businesses and does not impose any additional requirements on small businesses.
Small Business Regulatory Coordinator
The OCI small business coordinator is Eileen Mallow and may be reached at phone number (608) 266-7843 or at email address
eileen.mallow@wisconsin.gov
Fiscal Estimate
State and local government fiscal impact
There will be no state or local government fiscal effect.
Private sector fiscal impact
This rule change will have no significant negative effect on the private sector regulated by OCI but will allow numerous people to continue group health insurance that would not be able to without this change.
Agency Contact Person
Inger Williams, OCI
Public Information and Communications
Phone: (608) 264-8110
Address: 125 South Webster St., 2nd Floor
Madison, WI 53703-3474
Mail: PO Box 7873, Madison WI 53707-7873
Notice of Hearings
Justice Assistance
NOTICE IS HEREBY GIVEN that pursuant to ss.
16.964 (16) (b) and
227.11 (2) (a), Stats., the Office of Justice Assistance (OJA) will hold public hearings at the times and places indicated below to consider the creation of Chapter
OJA 1, relating to
the collection and analysis of motor vehicle traffic stop information.
Hearing Information
Date and Time Location
April 26, 2010 Room 142 C (Student Lounge)
4:00 PM Madison Area Technical College
3550 Anderson Street
Madison, Wisconsin
April 28, 2010 Room 250, Zelazo Center
4:00 PM University of Wisconsin — Milwaukee
2419 East Kenwood Boulevard
Milwaukee, Wisconsin
The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at a hearing, please call (608) 261-7005 at least 10 days prior to the hearing date. Accommodations will be made available to the fullest extent possible.
Copies of Proposed Rule
Copies of this proposed rule are available on the Office of Justice Assistance website at
http://oja.wi.gov under “Current News" or at the state administrative rules website at
http://adminrules.wisconsin.gov (search under “traffic stop"). Copies may also be obtained at no charge by making a request to Dennis Schuh, Program Director, Office of Justice Assistance, 1 S. Pinckney Street, Suite 615 Madison, WI 53703, Phone: (608) 266-7682. Email: Dennis.Schuh@ wisconsin.gov.
Appearances at the Hearing and Submission of Written Comments
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation, but are urged to submit facts, opinions and argument in writing as well. Comments may also be submitted using the Wisconsin Admin. Rules Website at http://adminrules. wisconsin.gov or submitted by mail addressed to the agency contact person listed above. The deadline for submitting comments to the Office of Justice Assistance is 4:30 p.m. on April 30, 2010.
Analysis Prepared by the Office of Justice Assistance
Statutes interpreted
Statutory authority
Explanation of agency authority
(11y) RULE-MAKING RELATED TO TRAFFIC STOP INFORMATION COLLECTION AND ANALYSIS. The office of justice assistance in the department of administration shall submit in proposed form the rules required under section
16.964 (16) (b) of the statutes, as created by this act, to the legislative council staff under section
227.15 (1) of the statutes no later than February 1, 2010.
Under the provisions of s.
16.964 (16) (b), Stats. as created by
2009 Wisconsin Act 28, “(t)he office shall promulgate rules relating to . . ." (traffic stop data collection, submittal, analyses and reports). “Office" is defined to mean “the office of justice assistance." s.
16.964 (1) (g), Stats.
Related statute or rule
Under
s.
349.027, Stats., the person in charge of a law enforcement agency shall “cause to be obtained" information required by the OJA rules relating to each traffic stop made on or after January 1, 2011. The person in charge of a law enforcement agency is also required to submit the information to the OJA using the process and format prescribed by OJA rules.
Plain language analysis
These rules fulfill a statutory mandate that OJA adopt rules relating to the collection of information on traffic stops by law enforcement agencies (agencies) and analysis of the collected information by OJA. By statute, the rules are to relate to:
•
The types of information that agencies must collect and the circumstances under which it must be collected;
•
The process and format that agencies must use to submit the collected information to the OJA;
•
The types of analyses that OJA will perform; and,
•
Requirements for making reports to the legislature.
Proposed ch.
OJA 1, in s.
OJA 1.03, includes definitions of terms used in the statute and rule, including “law enforcement agency," “law enforcement officer," “person in charge of a law enforcement agency employing the law enforcement officer" “race or ethnicity" and “traffic stop."
No later than June 30, 2010, the Department of Transportation and the OJA are to enter into a memorandum of understanding covering traffic stop data collection procedures, forms, procedures, costs, staffing and training. Among other things, the terms of the agreement are to minimize impact on the time and expense of law enforcement agencies. Section
OJA 1.04.
In section
OJA 1.05, the rules describe the type of information that police officers must collect relating to traffic stops, categorized as operator, occupant, event and search data. The process that law enforcement agencies must use to submit traffic stop data to the Office of Justice Assistance is set out in s.
OJA 1.06.
The types of data analysis that OJA will perform is described in s.
OJA 1.07. The analysis will be completed by the Statistical Analysis Center in OJA. The Center will analyze the traffic stop data under the tests identified in s.
16.964 (16) (a), Stats., specifically, to determine:
(a) Whether the number of traffic stops involving motor vehicles operated or occupied by members of a racial minority is disproportionate to the number of traffic stops involving motor vehicles operated or occupied solely by persons who are not members of a racial minority.
(b) Whether the number of searches involving motor vehicles operated or occupied by members of a racial minority is disproportionate to the number of searches involving motor vehicles operated or occupied solely by persons who are not members of a racial minority.
Under the rule, the analysis may also evaluate correlations between the race and ethnicity of vehicle occupants and traffic stop events such as search requests and stop duration. OJA may also note whether other factors, such as specific law enforcement strategies, may contribute to identified disproportionalities. OJA is required to identify benchmarks and other analytical tools used in preparing its reports.
All of the OJA traffic stop reports shall be filed as required by statute and published on the agency's website. Section
OJA 1.08.
Under section
OJA 1.10, a law enforcement agency that does not submit traffic stop data will be identified in OJA reports.
Comparison with federal regulations
There is no known federal law requiring the collection and analysis of data about the racial or ethnic characteristics of individuals involved in traffic stops. However, the Federal Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 23 USC s. 1906 provides guidance on local legislation. Section 1906 provides incentive funding for states to enact a law that prohibits the use of racial profiling in highway law enforcement and to allow public inspection of statistical information for each motor vehicle stop regarding the race and ethnicity of the driver and passengers.
Comparison with rules in adjacent states
Minnesota:
In 2001, Minn. Stats. §
626.951, provided for a statewide racial profiling study with voluntary participation by law enforcement agencies. Sixty-five jurisdictions participated, reporting 194,189 total stops. The 2003 report from this study analyzed one year of data collected from the sixty-five jurisdictions. The complete report is available at
http://archive.leg.state.mn.us/docs/2004/mandated/040200.pdf. According to the Minnesota study,
Law enforcement officers stopped Black, Latino, and American Indian drivers at greater rates than White drivers, searched Blacks, Latinos, and American Indians at greater rates than White drivers, and found contraband as a result of searches of Blacks, Latinos, and American Indians at lower rates than in searches of White drivers. . . . (2001 Report, p. 1)
The report includes the conclusion that the patterns of disparate treatment “. . . suggest a strong likelihood that racial/ethnic bias plays a role in traffic stop policies and practices in Minnesota."
Minnesota does not currently have a statewide law requiring law enforcement officers to collect data and prepare reports on the race of persons who are stopped or searched in a traffic stop. However, Minnesota does have a law that defines “racial profiling" and requires the chief law enforcement officer of every state and local law enforcement agency to enforce a written anti-racial profiling policy governing the conduct of officers engaged in stops of citizens. Minn. Stat. §
626.8471.
Iowa:
Iowa does not currently have a law requiring the police to collect traffic stop data that includes the race or ethnicity of vehicle operators or passengers. Between October 1, 2000 and March 3, 2002, the Iowa State Patrol collected traffic stop data from over 260,000 traffic stops. A report was prepared in April 2003, by the Iowa state Patrol and the Iowa Division of Criminal and Juvenile Justice Planning.
The 2003 Report, available at http://publications. iowa.gov/7228/1/Stop_Data.pdf, concluded, among other things, that,
Can we say whether or not ISP troopers are stopping, ticketing, searching or arresting people differently because of their race? The data in this report do not conclusively answer this question. They do give us an indication that Iowans are not more or less likely to be stopped by ISP troopers because of their race. . . .
The data in this report also do not definitively answer the question of whether or not the ISP troopers are influenced by a person's race or ethnicity when deciding whether to conduct a search or issue a warning vs. a formal sanction. The data do seem to indicate that race or ethnicity may have sometimes influenced decisions in these areas. However, such observations are only indications because a substantial number of cases had missing data and because the impact of numerous other variables that should affect such decisions is unknown (e.g. existence of outstanding warrants, severity of alleged traffic violations, visible contraband, incriminating driver or passenger behavior). (2003 Report p. 8)
Illinois:
Illinois began collecting traffic stop data and issuing annual reports on January 1, 2004. The Illinois law was substantially amended in 2008. A Racial Profiling Prevention and Data Oversight Board (Board) was created to oversee plans and strategies to eliminate racial profiling in Illinois.
The recent 2008 Illinois report based on data reported from 2,518,825 traffic stops, sought to answer two questions.
•
To what extent, if any, does race influence an officer's decision to stop a vehicle?
•
To what extent, if any, does race influence the disposition of the stop? Was a citation issued? Was the vehicle subject to a consent search?
The ratio of minority drivers stopped to the minority driving population has improved each year. That is, the percentage of minority divers stopped by the police is getting closer to the estimated driving population.
Law enforcement agencies continue to pay careful attention to this issue and many have introduced policies and procedures to correct deficiencies.
Our newest measures of post-stop performance — duration of stop — suggests that traffic stops of minority drivers consume about the same time as those for Caucasian drivers.
The number of consent searches in Illinois continues to decline, but minority drivers are still more likely to be consent searched than Caucasian drivers. Differential refusal rates do not appear to contribute to this difference.
