….
(5) The detention of persons participating in the intensive sanctions program.
(6) The temporary detention of persons in the custody of the department.
….
Section 939.615 (5) (a): A person placed on lifetime supervision under this section [lifetime supervision of serious sex offenders] is subject to the control of the department under conditions set by the court and regulations established by the department that are necessary to protect the public and promote the rehabilitation of the person placed on lifetime supervision.
Section 961.47 (1): Whenever any person who has not previously been convicted of any offense under this chapter, or of any offense under any statute of the United States or of any state or of any county ordinance relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or stimulant, depressant or hallucinogenic drugs, pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s.
961.41 (3g) (b), the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him or her. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for 2nd or subsequent convictions under s.
961.48. There may be only one discharge and dismissal under this section with respect to any person.
Section 973.01 (2) (intro): Structure of bifurcated sentences. A bifurcated sentence is a sentence that consists of a term of confinement in prison followed by a term of extended supervision under s.
302.113. The total length of a bifurcated sentence equals the length of the term of confinement in prison plus the length of the term of extended supervision. A order imposing a bifurcated sentence under this section shall comply with all of the following:
Section 973.10, Control and supervision of probationers: (1) Imposition of probation shall have the effect of placing the defendant in the custody of the department and shall subject the defendant to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers, parolees and persons on extended supervision.
(1m) (a) The department may order that a probationer perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the probationer and the organization or agency. The department shall ensure that the probationer is provided a written statement of the terms of the community service order and shall monitor the probationer's compliance with the community service order. Compliance with this subsection does not entitle a probationer to credit under s.
973.155.
(b) Any organization or agency acting in good faith to which a probationer is assigned under an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the probationer. The department has immunity from any civil liability for acts or omissions by or impacting on the probationer regarding the assignment under this subsection.
(2) If a probationer violates the conditions of probation, the department of corrections may initiate a proceeding before the division of hearings and appeals in the department of administration. Unless waived by the probationer, a hearing examiner for the division shall conduct an administrative hearing and enter an order either revoking or not revoking probation. Upon request of either party, the administrator of the division shall review the order. If the probationer waives the final administrative hearing, the secretary of corrections shall enter an order either revoking or not revoking probation. If probation is revoked, the department shall:
(a) If the probationer has not already been sentenced, order the probationer brought before the court for sentence which shall then be imposed without further stay under s.
973.15; or
(b) If the probationer has already been sentenced, order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison.
(2g) Upon demand prior to a revocation hearing under sub. (2), the district attorney shall disclose to a defendant the existence of any audiovisual recording of an oral statement of a child under s.
908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the statement. If, after compliance with this subsection, the state obtains possession, custody or control of such a statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the statement.
(2m) In any administrative hearing under sub. (2), the hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s.
967.04 (7) to
(10).
(3) A copy of the order of the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a final administrative hearing is sufficient authority for the officer executing it to take the probationer to court or to prison. The officer shall execute the order as a warrant for arrest but any officer may, without order or warrant, take the probationer into custody whenever necessary in order to prevent escape or enforce discipline or for violation of probation.
(4) The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each probation revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.
4. Estimate of the Amount of Time State Employees Will Spend Developing the Proposed Rule and of Other Resources Necessary to Develop the Rule
The Department estimates that it will take approximately 200 hours to develop this rule, including drafting the rule and complying with rulemaking requirements.
5. Description of all of the Entities that will be Affected by the Rule
This rule will affect persons on probation, parole, or extended supervision and department staff.
6. Summary of and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
There are no federal regulations which address the issue of the supervision of persons on probation, parole or extended supervision in Wisconsin. However, federal standards addressing the Prison Rape Elimination Act (PREA) of 2003 (
42 U.S.C. chapter 147 (ss. 15601-09) (2004)) include provisions which may affect the supervision of persons on community supervision. For example, the new federal standards impose confidentiality requirements for reporting incidents of sexual abuse or sexual harassment which are not included in the current rule.
7. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
The department anticipates that the proposed rule will have minimal to no economic impact statewide or locally.
8. Contact Person
Kathryn R. Anderson, Chief Legal Counsel, Wisconsin Department of Corrections, 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 53707-7925, (608) 240-5049,
kathryn.anderson@wisconsin.gov
Natural Resources
Fish, Game, etc., Chs.
NR 1—
(DNR # WM-24-13 (E))
This statement of scope was approved by the Governor on July 23, 2013.
Rule No.
Relating to
Deer management, hunting, and implementation of the 2012 White-tailed Deer Trustee's Report.
Rule Type
These will be emergency rules.
1. Finding/nature of Emergency (Emergency Rule Only)
The department is directed by 2013 ACT 20 to develop emergency rules allowing final implementation of provisions from the White-tailed Deer Trustee's Report. The ACT has established that the department is not required to make a finding of emergency. These emergency rules can remain in place until permanent rules are implemented.
2. Detailed Description of the Objective of the Proposed Rule
There has been dissatisfaction with various issues related to white-tailed deer management and hunting in Wisconsin. Gubernatorial candidate Scott Walker made a promise to appoint a “Deer Trustee" to review programs. In October of 2011, Dr. James C. Kroll, officially known as Wisconsin's white-tailed deer trustee, entered into a contract with the State of Wisconsin to conduct an independent, objective and scientifically-based review of Wisconsin's deer management practices. The White-tailed Deer Trustee's report was released to the public in July 2012.
The objective of these proposed rules is to work with sportsmen and sportswomen and other stakeholders in order to implement ideas and solutions from the Deer Trustee's report to forge a new age for deer management.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Implementation of the Deer Trustee's report will result in establishing significant new policies for deer management and hunting management compared to current rules. The primary policy alternatives being analyzed and considered are ones recommended in the report. Throughout this rulemaking process, the department and its partners may evaluate other policy alternatives as they are identified.
Ch.
NR 1 related to Natural Resources Board Policies
Ch.
NR 1 establishes a general framework for the department's wildlife and forestry management activities. The department is reviewing the report with this framework in mind and will recommend modifications that are consistent with the report. These rules are likely to shift away from deer population goals expressed solely in specific numbers of animals toward more general population objectives. The basis for establishing deer population goals may also be modified by these rules. The department may revise what it considers to be tolerable levels of crop damage. The chapter currently addresses wildlife habitat management policy and those provisions may be strengthened or made more specific based on significant wildlife habitat related recommendations in the report. Development of a Young Forest Initiative Task Force may be addressed in this chapter as well as a Deer Management Assistance Program. Deer research priorities may also be a topic that is addressed in this policy-setting chapter. This chapter will be amended to maintain cross-reference citations with ch.
NR 10.
Ch.
NR 8 related to License and Permit Procedures
Ch.
NR 8 establishes standards and procedures for the automated license issuance system. These rules may recommend changes if they are necessary to improve efficiency or flexibility in the issuance of licenses, as needs arise during development of new automated licensing systems, and to maintain cross-reference citations.
Ch.
NR 10 related to Game and Hunting
This chapter establishes most of the deer population management policy and practices and hunting regulations that are in place today. Ch.
NR 10 establishes the Sex-Age-Kill model for estimating deer populations, deer population goals, and deer management units. These rules will replace the current deer management unit population goals with a simplified unit objective to, “increase, stabilize, or decrease population density." These rules may establish the timetable for review of deer management units and the process for modifying established objectives. These rules will establish a set of metrics to monitor progress towards the goal. These rules will reduce the number of deer management units and may combine farmland regions. The department will consider using county boundaries in place of the current unit boundaries.
These rules will simplify the regulatory process by setting antlerless harvest goals, regulations, and antlerless permit quotas on a three-to-five year cycle instead of annually under current rule. Historical demand for antlerless permits has not been a factor considered in quota setting in the past but would be a consideration under these rules. Through these rules, the department may eliminate free antlerless deer tags, currently referred to as herd control tags. These rules may establish a fee for antlerless tags which allow harvest of deer in its CWD management zones. Currently, some units have an unlimited number of antlerless deer permits available per hunter but, under this proposal, that may no longer be the case. Finally, these rules may establish antlerless deer permits and allow the establishment of quotas for public lands that are different from the permits and quotas that are established for privately owned lands in a management unit.
Simplifying the regulatory process and implementing a new population management goal system may require a variety of related hunting regulations changes. Changes may include the names for permits and the allowable use of various deer permits. Back tags worn by hunters, deer carcass tags, and tagging requirements may be modified or eliminated where possible in order to simplify regulations or as opportunities arise during development of new automated licensing systems. Deer registration and transportation requirements may be relaxed and, in their stead, more customer-friendly harvest reporting procedures established. Black bear are another species for which in-person registration of harvested animals is required. These rules may modify bear harvest recording requirements if that is practical because deer and bear registration occur at the same locations and through the same process under current rules.
The department may recommend deer hunting season date modifications as a result of this rulemaking. While the report generally recommends that, “keeping seasons and bag limits consistent for longer periods of time would allow better assessment of management progress," it is challenging to discuss management system changes of this scale without considering season dates. For instance, it may be possible to simplify hunting regulations by eliminating a one-day closure of the archery season on the day before the traditional nine-day firearm season opens. The timing of other seasons for youth, disabled hunters, or other special seasons may also be evaluated. A move to more “passive" management of CWD, as recommended in the report, may also involve changes to deer hunting season dates.
This rulemaking will establish a Deer Management Assistance Program (DMAP) that will allow landowners and hunters to work together with the department to manage deer on a site-specific basis. The program will actively involve members of the public in the collection, analysis, and reporting of deer harvest information and improve management of the deer herd. The department may establish enrollment fees for participation in the program and that money will be credited back to implementation. This is a central recommendation of the report and recommends that the department establish: a) applicability to private and public lands, b) initial areas eligible to participate, c) administration of DMAP, d) funding, e) personnel and training, f) minimum property size to participate, g) fees, h) participation requirements, i) data collection requirements, j) registration of deer harvested on DMAP properties, k) data analysis and reporting, and l) assessment of DMAP effectiveness.
The department does not intend to modify regulations on the method of deer harvest at this time. However, if an ACT of the legislature modifies a legal method of harvest while this rule package is being promulgated, and related rule changes are needed, this rule package would implement an ACT of the legislature. Notably, the department is aware that changes to the allowable uses of crossbows are being considered.
The trustee's report generally recommends a more passive approach than current department policy to the management of Chronic Wasting Disease (CWD). CWD-related rulemaking will be correspondingly limited in this proposal. However, regulation changes related to disease testing protocol, harvest permits and other hunting regulations may be identified and included if they are consistent with the report. The department establishes separate population goals for deer units that are in a CWD zone. Those goals and methods of population estimation will be modified or eliminated by these rules.
These rules may make other modifications to deer hunting regulations if they can be characterized as simplifications. These may include changes to the allowable hunting hours or allowable guns, ammunition, and other devices.
Chs.
NR 11 and
15 related to Closed Areas and Game Refuges
Modifications to chs.
NR 11 and
15 will likely be needed to update cross references with ch.
NR 10 which will be modified significantly. Although the report did not recommend changes to these chapters of administrative code, additional modifications to these chapters may be made if that assists with regulations simplification or improvement of hunting opportunities.
Ch.
NR 12 related to Wildlife Damage and Nuisance Control
Modifications to ch.
NR 12 will likely be needed to update cross references with ch.
NR 10 which will be modified significantly. Although the report did not recommend significant structural changes to the damage program, additional modifications to this chapter may be made if that assists with regulations simplification or improvement of hunting opportunities.
Ch.
NR 13 related to Chippewa Treaty Rights Participants
Chapter
NR 13 is intended to regulate off-reservation treaty rights of treaty rights participants recognized by
Lac Courte Oreilles Band v. Voigt,
700 F. 2d 341 (7th Cir. 1983). Modifications to ch.
NR 13 will likely be needed to update numerous cross references with ch.
NR 10, which will be modified significantly.
Ch.
NR 19 related to Miscellaneous Fur, Fish, Game and Outdoor Recreation
Modifications to ch.
NR 19 will likely be needed to update cross references with ch.
NR 10, which will be modified significantly. This section also contains regulations for feeding of wild animals and white-tailed deer related provisions which are not directly related to the report. Additional modifications to the chapter may be made if that assists with regulations simplification or improvement of hunting opportunities.
Ch.
NR 45 related to the Use of Department Properties
Modifications to ch.
NR 45 will likely be needed to update cross references with ch.
NR 10, which will be modified significantly. The report did not recommend specific changes to this chapter of administrative code. However, many regulations in this chapter apply to deer hunters who are using department managed lands. Additional modifications to this chapter may be made if that assists with regulations simplification or improvement of hunting opportunities.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Department authority to conduct a variety of habitat and wildlife management activities is established in ss.
23.09 (2) (b),
(d), and
(h),
(k) and
(km), and
(p), Stats. These sections authorize rulemaking related to deer and deer habitat management and: plans and priorities for conservation, game refuges, cooperative forest protection, research, resources inventory, and disease control. These sections authorize many of the existing provisions of chs.
NR 1 (Natural Resources Board Policy), 11 (closed areas), 15 (game refuges), and 45 (use of department properties).
The department's ability to promulgate emergency rules to implement recommendations of the deer trustee report is established in non-statutory provisions of 2013 ACT 20. Specifically included in emergency rule authority is the ability to establish bonus antlerless deer permit fees and to establish a deer management assistance program. Additionally, the department is given authority to promulgate emergency rules that will implement recommendations of the assessment of this state's deer management plans and policies under s.
29.40 Stats. These emergency rules can remain in place until permanent rules are implemented. The department is not required to make a finding of emergency.
The primary authority to establish hunting regulations for deer and other species is established in s.
29.014, Stats. This section directs the department to establish and maintain open and closed seasons, bag limits, size limits, rest days, and other conditions for the taking of game that conserves the game supply and provides citizens with good hunting opportunities. This section authorizes many of the existing provisions of chs.
NR 8 (license and permit procedures), 10 (game and hunting), and 19
(Miscellaneous Fur, Fish, Game and Outdoor Recreation).
The wildlife damage and nuisance program and rulemaking authority are established in s.
29.889 (2) (b), Stats., which directs the department to establish rules for program eligibility and funding, methods of abating damage, forms and procedures, prorating claims, and record keeping, audits and inspections. This is the authorizing legislation for much of ch.
NR 12 related to wildlife damage.
The department's ability to establish fees for participation in the deer management assistance program is established in s.
29.020 (2), Stats.
Rules related to Chippewa treaty rights (ch.
NR 13) are promulgated under general authority to establish hunting regulations in s.
29.014, Stats., and these rules are the department's interpretation of how laws must be interpreted or limited in order to comply with the general limitations on state regulatory authority expressed in Lac Courte Oreilles v. State of Wisconsin,
668 F. Supp. 1233 (W.D. Wis. 1987) and the specific limitations expressed in the regulatory phase of the Voigt litigation. (See e.g., Lac Courte Oreilles v. State of Wisconsin,
707 F. Supp. 1034 (W.D. Wis. 1989)).
5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
The department estimates that emergency and permanent rule and program development will require the equivalent of 5 full time staff people, or 10,400 hours. This estimate includes developing new deer management programs in addition to time spent specifically on rule promulgation.
6. List with Description of all Entities that may be Affected by the Proposed Rule
White-tailed deer affect nearly every Wisconsin resident in some way. Many of these effects are significant from a recreational, economic, and/or social perspective. A wide variety of groups and individuals will be interested in this proposed rule. Some groups include: Wisconsin Conservation Congress, Great Lakes Indian Fish and Wildlife Commission, Wisconsin Farm Bureau Federation, Wisconsin Deer Hunters Assn., The Nature Conservancy, Whitetails Unlimited, Wisconsin Bowhunters Assn., Wisconsin County Forest Association, Wisconsin Woodland Owners Assn., Quality Deer Management Association, Rocky Mountain Elk Foundation, and the Sierra Club.
Groups registered to lobby the Wisconsin legislature within the last year, many registered specifically on these rules, include: Wisconsin Bear Hunter's Assoc., White-tails of Wisconsin, Safari Club International — Wisconsin Chapters, WI-Force, Wisconsin Wildlife Federation, National Rifle Assoc. of America, and the Assoc. of Wisconsin Snowmobile Clubs.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Federal regulations allow states to manage the wildlife resources located within their boundaries provided they do not conflict with regulations established in the Federal Register. None of these rule changes violate or conflict with the provisions established in the Federal Code of Regulations.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
Agencies are exempted from the requirement to prepare an economic impact analysis for emergency rules under s.
227.137 (5), Stats.
For similar or potentially identical emergency rules which the department is also promulgating, the department estimates that the economic impact will be moderate. Pursuant to
2011 Executive Order 50, the department will facilitate a 30 day period for comment on a draft economic impact analysis. The comment period will be held in late summer, 2013.
Contact Person
Scott Loomans, (608) 267-2452.
Public Instruction
