Under Wis. Stat. § 165.775 (3)(a) to (c), law enforcement agencies are directed to respond and take possession of a sexual assault kit (from a reporting victim) from health care professionals within 72 hours of being notified, and then must submit the kit to the Wisconsin State Crime Laboratories for processing within 14 days after taking possession of the kit. Additionally, the statute directs law enforcement agencies to submit a sexual assault kit to the Wisconsin State Crime Laboratories for storage when, prior to the submission of the kit to the crime laboratory for processing, a victim provides notification that they choose to revoke their consent and no longer want to proceed with the analysis of their kit. The statute does not, however, define procedures for these practices. The proposed emergency rules would develop a required practice and define processes for those criminal justice partners impacted by Wis. Stat. § 165.775 (3)(a) to (c), namely, law enforcement agencies. C. Wisconsin State Crime Laboratories
Under Wis. Stat. § 165.775(4)(a) and (b), the Wisconsin State Crime Laboratories is directed to take possession from health care professionals of a sexual assault kit from a victim who chooses not to report a crime to law enforcement and has not consented to have their kit analyzed. These provisions also direct the Wisconsin State Crime Laboratories to store the sexual assault kits received from these non-reporting victims for a period of ten years. During this ten-year storage period, the victim can choose to file a report of the crime to law enforcement and provide consent for the Wisconsin State Crime Laboratories to analyze their kit. Once the Wisconsin State Crime Laboratories receives notification of the report and consent for analyzing a victim’s sexual assault kit from the investigating law enforcement agency, the kit would be removed from storage and processed. The statute does not, however, define procedures for these practices. The proposed emergency rules would develop a required practice and define processes for those criminal justice partners impacted by Wis. Stat. § 165.775 (4)(a) to (b), namely, the Wisconsin State Crime Laboratories. D. Post-processing Sexual Assault Kit Storage by Law Enforcement Agencies
Under Wis. Stat. § 165.775(5), law enforcement agencies are directed to take possession of a sexual assault kit from the Wisconsin State Crime Laboratories after processing is completed. The statute further prescribes a storage timeframe for the law enforcement agency: “notwithstanding s. 968.205, it shall securely store the sexual assault kit for a period of 50 years, or until the date of the expiration of the statute of limitations, or until the end of the term of imprisonment or probation of a person who was convicted in the sexual assault case, whichever is longer.” The proposed emergency rules would develop a required practice and define processes for those criminal justice partners impacted by Wis. Stat. § 165.775(5), namely, law enforcement agencies. Additionally, 2021 Wis. Act 117 requires DOJ to establish a database, which shall be known as the Wisconsin Sexual Assault Kit Tracking System. 2021 Wis. Act. 117 § 1 (creating Wis. Stat. § 165.775(1) to (4)). The requirement of a sexual assault kit tracking system will provide transparency for future cataloging and transfers of sexual assault kits from victims. The kit tracking system will capture data in the creation, transfer, and processing timeline of sexual assault kits from victims, as handled by health care professionals, law enforcement agencies, and the Wisconsin State Crime Laboratories. 3. Statutory authority for the emergency rules (including the statutory citation and language):
The proposed promulgation of these emergency rules is supported by Wis. Stat. §§ 227.11(2)(a), 227.24(1), and 165.775(6). Section 165.775(6) was created by 2021 Wis. Act. 116 and requires DOJ to promulgate emergency rules under section 227.24 within 180 days of the effective date of section 165.775. See 2021 Wis. Act. 116, §§ 2, 10(1). Wisconsin Stat. § 227.11(2)(a) 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.
(a) An agency may, except as provided in s. 227.136(1), promulgate a rule as an emergency rule without complying with the notice, hearing, and publication requirements under this chapter if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures. (b) An agency acting under s. 186.235(21), 215.02(18) or 220.04(8) may promulgate a rule without complying with the notice, hearing and publication procedures under this chapter. (c) A rule promulgated under par. (a) takes effect upon publication in the official state newspaper or on any later date specified in the rule and, except as provided under sub. (2), remains in effect only for 150 days.
(d) A rule promulgated under par. (b) takes effect upon publication in the official state newspaper or on any later date specified in the rule and remains in effect for one year or until it is suspended or the proposed rule corresponding to it is objected to by the joint committee for review of administrative rules, whichever is sooner. If a rule under par. (b) is suspended or a proposed rule under s. 186.235 (21), 215.02 (18) or 220.04 (8) is objected to by the joint committee for review of administrative rules, any person may complete any transaction entered into or committed to in reliance on that rule and shall have 45 days to discontinue other activity undertaken in reliance on that rule.
(e) An agency that promulgates a rule under this subsection shall do all of the following:
1d. Prepare a statement of the scope of the proposed emergency rule as provided in s. 227.135(1), obtain approval of the statement as provided in s. 227.135(2), send the statement to the legislative reference bureau for publication in the register as provided in s. 227.135(3), and hold a preliminary public hearing and comment period if directed under s. 227.136(1). If the agency changes the scope of a proposed emergency rule as described in s. 227.135(4), the agency shall prepare and obtain approval of a revised statement of the scope of the proposed emergency rule as provided in s. 227.135(4). No state employee or official may perform any activity in connection with the drafting of a proposed emergency rule except for an activity necessary to prepare the statement of the scope of the proposed emergency rule until the governor and the individual or body with policy-making powers over the subject matter of the proposed emergency rule approve the statement.
1g. Submit the proposed emergency rule in final draft form to the governor for approval. The governor, in his or her discretion, may approve or reject the proposed emergency rule. If the governor approves a proposed emergency rule, the governor shall provide the agency with a written notice of that approval. An agency may not file an emergency rule with the legislative reference bureau as provided in s. 227.20 and an emergency rule may not be published until the governor approves the emergency rule in writing.
1m. Prepare a plain language analysis of the rule in the format prescribed under s. 227.14(2) and print the plain language analysis with the rule when it is published.
2. Prepare a fiscal estimate for the rule in the format prescribed under s. 227.14(4), mail the fiscal estimate to each member of the legislature, and send a copy of the fiscal estimate to the legislative reference bureau in an electronic format approved by the legislative reference bureau, not later than 10 days after the date on which the rule is published.
Wisconsin Stat. § 165.775(6), as created by 2021 Wis. Act. 116, provides that “[t]he department shall promulgate rules to administer this section.” 2021 Wis. Act. 116, § 2 provides, in pertinent part:
Section 2. 165.775 of the statutes is created to read:
165.775 Sexual assault kits. (1) . . .
(6) The department shall promulgate rules to administer this section.
2021 Wis. Act. 116, § 10(1) provides:
Section 10. Nonstatutory provisions.
(1) Within 180 days of the effective date of this subsection, the department of justice shall promulgate emergency rules under s. 227.24 to implement s. 165.775 for the period before the effective date of the permanent rules but not to exceed the period authorized under s. 227.24(1)(c), subject to extension under s. 227.24(2). Notwithstanding s. 227.24 (1)(a), (2)(b), and (3), the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. These statutes and 2021 Wis. Act 116 expressly confer on DOJ the power to promulgate emergency rules interpreting the provisions in Wis. Stat. § 165.775 that are to be enforced or administered by DOJ to effectuate the purpose of those statutory provisions and the act, as long as the emergency rules do not exceed the bounds of correct interpretation of the governing statutes. DOJ finds that the promulgation of the proposed emergency rules is appropriate to comply with the Legislature’s direction that DOJ promulgate emergency rules, as described in the preceding sections of this statement. DOJ further finds that the emergency rules here proposed:
- do not exceed the bounds of correct interpretation of Wis. Stat. § 165.775; - are authorized by the statutes and act described above and are not based on authority derived from any other statutory or nonstatutory statements or declarations of legislative intent, purpose, findings, or policy;
- are authorized as necessary interpretations of the specific requirements of Wis. Stat. § 165.775 and 2021 Wis. Act. 116 and are not based on authority derived from any other general powers or duties of DOJ; and - do not impose any standards or requirements that are more restrictive than the standards and requirements contained in Wis. Stat. § 165.776. For these reasons, the proposed rule changes are authorized by Wis. Stat. §§ 227.11(2)(a), 227.24(1), and 165.775(6), as created by 2021 Wis. Act. 116.
4. Estimate of the amount of time that state employees will spend to develop the emergency rules and of other resources necessary to develop the emergency rules:
It is estimated that state employees will spend approximately 60 hours on the rulemaking process for the emergency rules proposed here, primarily for compliance with required rulemaking procedures.
5. Description of all entities that may be impacted by the emergency rules:
Several entities may be impacted by the proposed emergency rules. First, DOJ may be impacted, as it is the state agency primarily tasked with administering the changes to the law enacted in 2021 Wis. Act 116. Second, law enforcement agencies and district attorneys and their staffs may be impacted. Third, health care professionals, including those who work for hospitals and clinics, may be impacted. Fourth, the Wisconsin State Crime Laboratories may be impacted. The nature of these potential impacts of the proposed emergency rules are described in more detail in section 2 of this scope statement.
6. Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the emergency rules:
