Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF JUSTICE

OF THE STATE OF MONTANA

In the matter of the adoption of New Rules I through VI pertaining to tracking sexual assault evidence kits through a statewide Sexual Assault Kit Tracking System

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On July 16, 2021, at 2:00 p.m., the Department of Justice will hold a public hearing via remote conferencing to consider the proposed adoption of the above-stated rules. Due to the current state of emergency in Montana and due to the public health crisis caused by the coronavirus, there will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways:

(a) Join Zoom Meeting, https://mt-gov.zoom.us/j/87102134634?pwd=U2x6dURZd01RZS9kKzJOWngvUURNdz09

Meeting ID: 871 0213 4634

Password: 925906

(b) Dial by Telephone, +1 646 558 8656 or +1 406 444 9999

Meeting ID: 871 0213 4634, Password: 925906.

The hearing will begin with a brief introduction by department staff to explain the use of the videoconference and the telephonic platform. All participants will be muted except when it is their time to speak.

2. The Department of Justice will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Justice no later than July 9, 2021, to advise us of the nature of the accommodation that you need. Please contact Kayla Bragg, Department of Justice, P.O. Box 201417, Helena, MT 59620; telephone (406) 444-5896; or kayla.bragg@mt.gov.

3. GENERAL STATEMENT OF REASONABLE NECESSITY: The 2019 Legislature enacted Chapter 138, Laws of 2019 (Senate Bill 52), an act revising the laws on sexual assault kits. The bill was signed by the Governor on April 16, 2019, and is codified at 46-15-405, MCA. The Department of Justice (department or DOJ) is proposing to adopt new rules to implement the legislation, which requires DOJ to adopt rules that govern developing and using the sexual assault kit tracking system.

4. The rules as proposed to be adopted provide as follows:

NEW RULE I DEFINITIONS Unless the context indicates otherwise, the words and phrases in this subchapter have the definitions set forth in this rule.

(1) "Administered kit" means a sexual assault evidence kit that has been used to collect forensic evidence from an individual.

(2) "Authorized user" is a person who is designated by a healthcare facility, law enforcement agency, or crime laboratory and who has a registered account in the sexual assault kit tracking system.

(3) "Crime laboratory" means a Montana entity that receives, processes, and tests sexual assault kit evidence.

(4) "Department" means the Montana Department of Justice.

(5) "DOJ Victim Services" means the Montana Department of Justice Office of Victim Services Forensic Rape Examination Payment Program.

(6) "Healthcare facility" means a facility or entity that is licensed, certified, or otherwise authorized by law to administer medical treatment in this state.

(7) "Kit" means a sexual assault evidence kit.

(8) "Law enforcement agency" means a Montana law enforcement service provided directly by a local government as defined in 7-32-201, MCA.

(9) "Stakeholder" means a healthcare facility, law enforcement agency, or crime laboratory in the state of Montana that administers, receives, transfers, or stores sexual assault evidence kits.

(10) "Status" means the current location and status of the kit, including: inventory, collected, held, in evidence, processing, processed, archived, and discarded.

(11) "Tracking system" means the Sexual Assault Kit Tracking System defined in 46-15-405, MCA.

AUTH: 46-15-405, MCA

IMP: 46-15-405, MCA

NEW RULE II Requirement to Designate Authorized Users

(1) A stakeholder shall designate at least two authorized users within the healthcare facility, law enforcement agency, or crime laboratory to register for and maintain a sexual assault kit tracking system account.

AUTH: 46-15-405, MCA

IMP: 46-15-405, MCA

NEW RULE III PROCEDURE FOR HEALTHCARE FACILITIES TO USE THE SEXUAL ASSAULT KIT TRACKING SYSTEM (1) Within 72 hours of receiving a kit from DOJ Victim Services, a healthcare facility shall update the status of the kit in the tracking system.

(2) Within 24 hours of administering a kit, a healthcare facility shall update the status of the kit in the tracking system.

(3) A healthcare facility shall update a kit's status in the tracking system before transferring the kit to a law enforcement agency or DOJ Victim Services.

(4) A healthcare facility shall update a discarded or destroyed kit's status in the tracking system.

AUTH: 46-15-405, MCA

IMP: 46-15-405, MCA

NEW RULE IV PROCEDURE FOR LAW ENFORCEMENT AGENCIES TO USE THE SEXUAL ASSAULT KIT TRACKING SYSTEM (1) Within 72 hours of receiving a kit from a healthcare facility or DOJ Victim Services, a law enforcement agency shall update the kit's status in the tracking system.

(2) Within 72 hours of receiving a tested kit from a crime laboratory, a law enforcement agency shall update the kit's status in the tracking system.

(3) A law enforcement agency shall update a kit's status in the tracking system before transferring the kit to a crime laboratory, another law enforcement agency, or DOJ Victim Services.

AUTH: 46-15-405, MCA

IMP: 46-15-405, MCA

NEW RULE V PROCEDURE FOR CRIME LABORATORIES TO USE THE SEXUAL ASSAULT KIT TRACKING SYSTEM (1) Within 72 hours of receiving a kit from a law enforcement agency, a crime laboratory shall update a kit's status in the tracking system.

(2) A crime laboratory shall update a kit's status in the tracking system before transferring the kit to a law enforcement agency.

AUTH: 46-15-405, MCA

IMP: 46-15-405, MCA

NEW RULE VI NOTICE OF VIOLATION (1) A written notice of violation shall contain:

(a) the date of the notice;

(b) contact information for the stakeholder;

(d) a summary of the complaint made by the department, including:

(i) the specific provisions of the statute or rule alleged to be violated; and

(ii) the specific facts alleged to constitute a violation; and

(e) a description of the department's suggested corrective action.

(2) If a stakeholder is still in violation 30 days after the date of notice received via certified mail from the department, then the department may provide notice of the alleged violation to any legislative committee with jurisdiction over the stakeholder. The department may also provide public notice of the alleged violation.

AUTH: 46-15-405, MCA

IMP: 46-15-405, MCA

5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to Kayla Bragg, Department of Justice, P.O. Box 201417, Helena, MT 59620; telephone (406) 444-5896; or e-mail kayla.bragg@mt.gov, and must be received no later than July 23, 2021.

6. Kayla Bragg, Department of Justice, has been designated to preside over and conduct this hearing.

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in paragraph 5 above or may be made by completing a request form at any rules hearing held by the department.

8. An electronic copy of this proposal notice is available through the Secretary of State's website at http://sosmt.gov/ARM/Register.

9. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by email and by telephone on May 18, 2020.

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption of the above-referenced rules will not significantly and directly impact small businesses.

/s/ Hannah E. Tokerud /s/ Kris Hansen

Hannah E. Tokerud Kris Hansen

Rule Reviewer Administrator

Department of Justice

Certified to the Secretary of State June 15, 2021.