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STATE OF WISCONSIN
Department of Justice
PROPOSED ORDER OF THE STATE DEPARTMENT OF JUSTICE
adopting EMERGENCY RULES
Introduction
  The State of Wisconsin Department of Justice proposes an order to create chapter Jus 19 relating to standards and procedures for the frequent sobriety testing pilot program.
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Analysis by the Department of Justice
  The State of Wisconsin Department of Justice (“Department”) proposes to promulgate emergency administrative rules to create chapter Jus 19, which will implement the Department’s statutory responsibility under Wis. Stat. § 165.957 relating to standards and procedures for a frequent sobriety testing pilot program (“program”).
  The statement of scope for the proposed emergency rules was approved by the Governor on May 19, 2016, published in the Administrative Register on May 24, 2016, and approved by the
Attorney General on May 9, 2016.
Statute interpreted: s. 165.957, Stats.
Statutory authority: s. 165.957(3), Stats., s. 227.11(2)(a).
Explanation of Statutory authority:
A.   Section 165.957(3), Stats.
  Section 165.957(3), Stats., authorizes standards for frequent testing for alcohol or controlled substances, setting fees that counties may collect to cover the costs of frequent testing, and a timeline and procedure for counties to submit the information collected during the life of the pilot program to the Department. Section 165.957(3), Stats., states as follows:
The department of justice may, by rule, establish the following:
(a) A standard for frequent testing for the use of alcohol or a controlled substance that is an alternative to the testing described in sub. (4)(b)1. [which requires alcohol testing at least twice daily and testing for controlled substances as frequently as practicable]. . . .
(b) A standard for setting fees that counties may collect under sub. (4)(d). The standard may include a component that allows the department of justice to recoup its costs under this section, and as provided in sub. (5)(a).
(c) A timeline and procedure for counties to submit to the department of justice the information required under sub. (6).
B.   Section 227.11(2)(a), Stats.
  Those portions of the proposed rules that are not specifically authorized by ss. 165.957(3), Stats., 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.
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.
  This statute confers on the Department the power to determine whether administrative rules interpreting statutory provisions to be enforced or administered by the Department are necessary to effectuate the purpose of those statutory provisions and, if such necessity is found, to promulgate administrative rules that do not exceed the bounds of correct interpretation of the governing statutes.
  The Department finds that the rules here proposed are necessary to effectuate the statutory objectives of s. 165.57, Stats., which authorizes creation of the frequent sobriety testing pilot program. The Department has the statutory responsibility to enforce and administer that program.
  The Department further finds that the rules here proposed:
do not exceed the bounds of correct interpretation of the pertinent statutes;
are authorized by s. 165.957, Stats., 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 the department of justice; and
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