Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF CORRECTIONS

OF THE STATE OF MONTANA

In the matter of the adoption of New Rules I and II pertaining to the satellite-based monitoring program

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On February 8, 2011, at 10:00 a.m., the Department of Corrections will hold a public hearing in Room 4-65 at 5 South Last Chance Gulch, at Helena, Montana, to consider the proposed adoption of the above-stated rules.

2. The Department of Corrections 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 Department of Corrections no later than 5:00 p.m. on January 21, 2011, to advise us of the nature of the accommodation that you need. Please contact Cheryl Waits, Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620; telephone (406) 444-4906; fax (406) 444-7909; or e-mail [email protected].

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

NEW RULE I DEFINITIONS For the purposes of this chapter, these definitions apply:

(1) "Board" means the Board of Pardons and Parole as authorized in 2-15-2302 and 46-23-104, MCA.

(2) "Conditional Release" means the placement by the department of an offender into the community under the jurisdiction of the department and subject to the department's rules.

(3) "Department" means Department of Corrections as authorized in 2-15-230, MCA.

(4) "Level 3 sex offender" means an offender who a judge has designated as having a high probability of committing a repeat sexual offense.

(5) "Offender" means a person convicted and sentenced for a felony offense.

(6) "Parole" means the release from incarceration by the Board of Pardons and Parole prior to the completion of an offender's sentence of incarceration.

(7) "Probation" means the district court's release of an offender into the community, subject to supervision by the department.

(8) "Sexual offender" means a person who has been convicted of or, in youth court, found to have committed or been adjudicated for a sexual offense as defined in 46-23-502(9), MCA.

(9) "Zone" means an area where the offender is supposed to be located or an area where the offender is prohibited from being located.

AUTH: 46-23-1010, MCA

IMP: 46-23-1010, MCA

STATEMENT OF REASONABLE NECESSITY: The department proposes to adopt NEW RULE I to define terms that are used in NEW RULE II.

NEW RULE II SATELLITE-BASED MONITORING PROGRAM (1) The department shall establish and administer a program for the continuous satellite-based monitoring of sexual and other offenders.

(2) All offenders supervised by the department are eligible to participate in the satellite-based monitoring program, including offenders ordered by the court and the board to participate in the program.

(3) An offender convicted under 45-5-503(4), 45-5-507(5), 45-5-601(3), 45-5-602(3), or 45-5-603(2)(c), MCA and released from imprisonment must participate in the program.

(4) An offender designated a level 3 sex offender who is on probation, parole, or conditional release must participate in the program.

(5) The department may establish procedures for the day-to-day operation of the program, which will include, at a minimum, the following:

(a) a time-correlated passive system of tracking of the offender's geographic location at least every five minutes using a global positioning system based on satellite and other location-tracking technology;

(b) reporting once a day of the offender's locations the previous day; and

(6) The satellite-based monitoring program shall share offender location data with local and state law enforcement officials upon request.

(7) An offender in the satellite-based monitoring program shall pay a monthly fee to the department for his/her participation in the program. The fee the department assesses shall include the actual monthly cost of equipment and services needed to operate the program and a fee to supervise the offender on the program. The total amount of the fee may not exceed $4,000.00 per year.

(8) The department shall contract with a single vendor for the equipment and services needed to monitor offenders in the program. The contract also may provide for the collection and disposition of the monthly fees provided for in (7) including the reasonable cost of collection of the fee.

AUTH: 46-23-1010, MCA

IMP: 45-5-503, 45-5-507, 45-5-601, 45-5-602, 45-5-603, 45-5-625, 46-18-206, 46-18-207, 46-23-1010, 46-23-1031, MCA

STATEMENT OF REASONABLE NECESSITY: The 59^th Montana Legislature enacted Senate Bill 207 which authorizes the department to establish a satellite-based monitoring program for sexual offenders. The provisions of Senate Bill 207 are codified in 46-23-1010, MCA. 46-23-1010, MCA also contains the authority to adopt administrative rules to implement the satellite-based monitoring program. The department proposes to adopt NEW RULE II to establish the minimum requirements for a satellite-based monitoring program.

4. 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: Cheryl Waits, Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620; telephone (406) 444-4906; fax (406) 444-7909; or e-mail [email protected], and must be received no later than 5:00 p.m., February 10, 2011.

5. Diana Koch, Department of Corrections, has been designated to preside over and conduct this hearing.

6. 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 Myrna Omholt-Mason, 5 South Last Chance Gulch, Helena, Montana, 59620 or may be made by completing a request form at any rules hearing held by the department.

7. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

8. The bill sponsor contact requirements of 2-4-302, MCA apply and have been fulfilled. The primary bill sponsor of SB 207 was contacted by phone on October 6, 2010.

/s/ Diana Koch /s/ Mike Ferriter

Diana Koch Mike Ferriter

Rule Reviewer Director

Department of Corrections

Certified to the Secretary of State January 3, 2011.