STATE OF WISCONSIN
Department of Justice
ORDER adopting EMERGENCY RULES
The State of Wisconsin Department of Justice (“DOJ”) proposes an order to amend ss. Jus 9.01 and 9.09; to repeal and recreate ss. Jus 9.04, 9.05, 9.06, 9.07, and 9.08; and to create ss. Jus 9.03 (2m), (5), and (6) and 9.10 relating to procedures and standards for the submission of human biological specimens, the analysis of DNA in those specimens, the maintenance of a data bank of DNA analysis data, and the use and disposition of specimens and data in the data bank.
Analysis by the Department of Justice
The State of Wisconsin Department of Justice proposes to promulgate emergency administrative rules to amend Jus 9.01 and 9.09; to repeal and recreate ss. Jus 9.04, 9.05, 9.06, 9.07, and 9.08; and to create s. Jus 9.03 (2m), (5) and (6) and 9.10 relating to the procedures for the collection of human biological specimens, the submission of such specimens to the Department of Justice crime laboratories for DNA analysis, the analysis of specimens, the maintenance of a data bank of DNA analysis data, the use of the DNA data bank, the expungement of biological specimens and DNA analysis data, the confidentiality of some DNA data bank records, and the imposition of a DNA analysis surcharge in certain cases. The proposed emergency rules will bring Wis. Admin. Code ch. Jus 9 into compliance and consistency with the provisions in 2013 Wisconsin Act 20 (“Act 20”) and 2013 Wisconsin Act 214 (“Act 214”) that amended various statutes related to the collection and handling of biological samples, the conduct of DNA analysis, and the handling of DNA analysis data. The proposed emergency rules will correspond to and have the same scope as the proposed permanent rules that are in the process of being promulgated by DOJ. See Clearinghouse Rule 14-070. The scope of the proposed permanent rules was described in a scope statement that was approved by the Governor on July 28, 2014, published in the Administrative Register on August 15, 2014, and given final written approval by the Attorney General on August 25, 2014. The proposed permanent rules were submitted for the Governor’s approval under s. 227.185, Stats., on February 25, 2015.
The scope of the proposed emergency rules was described in a scope statement that was approved by the Governor on February 26, 2015, published in the Administrative Register on March 2, 2015, and given final written approval by the Attorney General on March 12, 2015.
Explanation of Statutory authority:
Acts 20 and 214 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. Section 165.76(4), Stats., authorizes the portions of the proposed rules that establish procedures and time limits for obtaining and submitting biological specimens, specify whether particular individuals are required to provide a biological specimen, provide for the analysis of biological specimens by the state crime laboratories, provide for the submission of DNA profile data for inclusion in the Federal Bureau of Investigation’s National DNA Identification System, provide for state reimbursement to law enforcement agencies for costs incurred in collecting and submitting biological specimens, and provide for DOJ to carry out any other duties under s. 165.76, Stats. Section 165.76(4), Stats., states as follows:
The department of justice shall promulgate rules to do all of the following:
(a) Establish procedures and time limits for obtaining and submitting biological specimens under this section and 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, and 980.063.
(b) Specify whether an individual who is required under this section or s. 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.
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. Section 165.77(8), Stats., says: “The department shall promulgate rules to administer this section.” That statute thus authorizes those portions of the proposed rules that provide for DOJ to carry out its duties under s. 165.77, Stats.,
Those portions of the proposed rules that are not specifically authorized by ss. 165.76(4) and 165.77(8), Stats., as described above, are authorized by s. 227.11(2)(a), Stats., which provides:
(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.