Report From Agency
PUBLIC NOTICE
Notice of Submittal of Rule to Legislature
On July 11th, 2023, the Department of Corrections submitted CR 21-104, a proposed rule in final draft form, to the chief clerk of each house of the legislature. On November 8th, 2023, the Department of Corrections recalled the rule pursuant to s. 227.19(4)(b)4. With this Notice, the Department of Corrections is resubmitting CR1 21-104, a proposed rule with germane modifications, to the chief clerk of each house of the legislature pursuant to s. 227.19(4)(b) 2 & 4. The germane modifications specifically include not repealing Wis. Admin Code § DOC 328.04(3)(e) and (o). The statement of scope for this rule was approved by the Governor on December 18th, 2020, published as Scope Statement No. SS 005-21 in Register No. 781A2 on January 11th, 2021, and approved by former Secretary Kevin A. Carr on March 1st, 2021. SUBJECT: Modifications to Chapter DOC 328. CLEARINGHOUSE RULE #: 21-104
ADM. CODE REFERENCE: Chapter DOC 328 APPROVED BY GOVERNOR: July 10th, 2023
Dated this ___th day of December, 2023
STATE OF WISCONSIN
DEPARTMENT OF CORRECTIONS
By _________________________________
Kevin A. Carr, Secretary
Department of Corrections
WISCONSIN DEPARTMENT OF CORRECTIONS
PROPOSED RULE MAKING ORDER
INTRODUCTORY CLAUSE
The statement of scope for this rule was approved by the Governor on December 18, 2020, published as Scope Statement No. SS 005-21 in Register No. 781A2 on January 11, 2021, and approved by Secretary Kevin Carr on March 1, 2021. The Wisconsin Department of Corrections proposes an order to repeal DOC 328.04(3)(j) and (k) and to repeal and recreate DOC 328.04(3)(d).
RULE SUMMARY
1. Statutes interpreted:
ss. 6.03, 165.76, 301.001, 301.03, 302.113(10), 302.114(10), 302.117, 939.615(5)(a), 973.01(5), 973.09(1), 973.10 Stats. 2. Statutory authority to promulgate the rule: The department is directed by Wisconsin Statute § 301.03(3) to “administer parole, extended supervision, and probation matters.” 3. Explanation of agency authority: Section 227.11 (2) (a) – (e): Rule-making authority is expressly conferred on an agency 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 non-statutory 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.
(b) Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.
(c) Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule.
(d) An agency may promulgate rules implementing or interpreting a statute that it will enforce or administer after publication of the statute but prior to the statute's effective date. A rule promulgated under this paragraph may not take effect prior to the effective date of the statute that it implements or interprets.
(e) An agency may not inform a member of the public in writing that a rule is or will be in effect unless the rule has been filed under s. 227.20 or unless the member of the public requests that information. Section 301.03 (3): Administer parole, extended supervision, and probation matters, except that the decision to grant or deny parole to inmates shall be made by the parole commission and the decision to revoke probation, extended supervision, or parole, in cases in which there is no waiver of the right to a hearing, shall be made by the division of hearings and appeals in the department of administration. The secretary may grant special action parole releases under s. 304.02. The department shall promulgate rules to [effectuate short-term sanctions]. Section 301.03 (7m): Supervise criminal defendants accepted into the custody of the department under s. 969.02 (3) (a) or 969.03 (1) (a). The department shall charge the county that is prosecuting the defendant a fee for providing this supervision. The department shall set the fee by rule. Section 302.113 (10): The department may promulgate rules establishing guidelines and criteria for the exercise of discretion under this section [release to extended supervision for felony offenders not serving life sentences]. Section 302.114 (10): The department may promulgate rules establishing guidelines and criteria for the exercise of discretion under this section [petition for release and release to extended supervision for felony offenders serving life sentences]. Section 302.19: Temporary detention of inmates: The department may use any of its facilities for the temporary detention of persons in its custody. Section 302.31 (5) and (6): The county jail may be used for any of the following purposes: ….
(5) The detention of persons participating in the intensive sanctions program.
(6) The temporary detention of persons in the custody of the department.
