Scope Statements
Justice
This statement of scope was approved by the governor on October 26, 2012.
Rule No.
The proposed emergency rules will be numbered Wis. Admin. Code sections
Jus 17.01 through
17.13 and
Jus 18.01 through
18.10 and will replace the existing emergency rules bearing the same numbers.
Relating to
Licenses authorizing persons to carry concealed weapons; concealed carry certification cards for qualified former federal law enforcement officers; the recognition by Wisconsin of concealed carry licenses issued by other states; and the certification of firearms safety and training instructors.
Rule Type
Emergency.
Description of the Objective of the Rules
The State of Wisconsin Department of Justice (“DOJ") proposes to promulgate emergency administrative rules relating to the implementation of DOJ's statutory responsibilities under
2011 Wis. Act 35 regarding licenses authorizing persons to carry concealed weapons, the certification of firearm safety and training instructors, the recognition by Wisconsin of concealed carry licenses issued by other states, and concealed carry certification cards for qualified former federal law enforcement officers.
The proposed emergency rules will correspond to and have the same scope as the emergency rules covering the same subjects that are currently in effect. Those current emergency rules were published by DOJ and effective on March 21, 2012. On August 16, 2012, the Joint Committee for Review of Administrative Rules authorized a 60-day extension of those emergency rules through October 16, 2012. On September 14, 2012, DOJ requested a second 60-day extension of those emergency rules which, if granted, will last through December 15, 2012. Under Wis. Stat. s.
227.24 (2) (a), JCRAR may not extend the existing emergency rules for more than 120 days and thus may not extend them beyond December 15, 2012.
The need for these new emergency rules arises out of the anticipated expiration of the existing emergency rules on December 15, 2012. Since November 1, 2011, DOJ has been processing concealed carry license applications pursuant to Wis. Stat. s.
175.60 and is statutorily required to continue processing such applications on an ongoing basis. In order for DOJ to continue complying with the requirements of Wis. Stat. s.
175.60 and related statutory requirements, it is important that it continuously has in effect administrative rules establishing the procedures and standards that govern the enforcement and administration of those requirements.
DOJ is in the process of promulgating permanent administrative rules for that purpose. On September 5, 2012, the final draft of the proposed permanent rules and accompanying reports were submitted for legislative review, pursuant to Wis. Stat. s.
227.19 (2). The permanent rulemaking process, however, will not be completed prior to the anticipated expiration of the existing emergency rules on December 15, 2012. The public welfare thus requires that additional emergency rules be promulgated, in order to ensure that there is no interruption in DOJ's ability to continue to carry out all of its statutory responsibilities in administering and enforcing the concealed carry licensing program. The rules proposed here would prevent such a discontinuity and ensure continuous and uniform operation of the concealed carry program through the completion of the permanent rulemaking process that is already under way.
As previously noted, the proposed emergency rules will cover the same subject areas covered by the existing emergency rules and by the proposed permanent rules. There are five such subject areas:
First, there are rules governing the issuance of concealed carry licenses to qualified applicants by DOJ pursuant to s.
175.60, Stats. These rules govern all aspects of the licensing process and describe the procedures and standards under which DOJ processes applications, sets and collects fees, and verifies that each license applicant meets all of the license eligibility requirements under s.
175.60 (3), Stats., including procedures and standards for certifying that an applicant has satisfied the applicable statutory training requirements and procedures for conducting the statutorily required background check of each applicant to determine whether the applicant is prohibited from possessing a firearm under state or federal law.
Second, the rules govern the administration of concealed carry licenses that have been issued by DOJ. These rules cover: the maintenance and treatment of licensing records by DOJ; the receipt and processing by DOJ of information from courts regarding individuals subject to a court imposed disqualification from possessing a dangerous weapon; procedures for renewing a license and replacing a license that is lost, stolen, or destroyed; procedures for processing address changes or name changes by licensees; procedures and standards for revoking or suspending a license; procedures for the administrative review by DOJ of any denial, suspension, or revocation of a license; and procedures governing DOJ's cooperation with courts and law enforcement agencies in relation to emergency licenses issued by a court.
Third, the rules govern the procedures and standards for the qualification and certification of firearms instructors by DOJ under s.
175.60 (4) (b), Stats., and provide a definition identifying those firearm instructors who are certified by a national or state organization, as provided in s.
175.60 (4) (a), Stats.
Fourth, pursuant to s.
165.25 (12m), Stats., the rules designate those states other than Wisconsin that issue a permit, license, approval, or other authorization to carry a concealed weapon that is entitled to recognition in Wisconsin under s.
175.60 (1) (f), Stats., because the permit, license, approval, or other authorization requires, or designates that the holder chose to submit to, a background search that is comparable to the type of background check that DOJ is required to conduct for Wisconsin licensees under s.
175.60 (9g), Stats.
Fifth, the rules govern the procedures and standards under which DOJ issues concealed carry certification cards to qualified former federal law enforcement officers pursuant to s.
175.49, Stats. These rules govern all aspects of the certification process for former federal officers who reside in Wisconsin and describe the procedures and standards under which DOJ processes applications, sets and collects fees, and verifies that each applicant meets all of the certification eligibility requirements under s.
175.49 (3) (b), Stats., including procedures and standards for certifying that an applicant has satisfied the firearm qualification requirement under s.
175.49 (3) (b) 5., Stats., and procedures for conducting the statutorily required background check of each applicant to determine whether the applicant is prohibited from possessing a firearm under federal law. The rules also cover: the maintenance and treatment of certification records by DOJ; procedures for renewing a certification card and replacing a card that is lost, stolen, or destroyed; procedures for processing address changes or name changes by a certified former federal officer; procedures and standards for revoking or suspending a certification; and procedures for the administrative review by DOJ of any denial, suspension, or revocation of a certification.
Description of Existing Policies Relevant to the Rule, and of New Policies Proposed To Be Included in the Rule, and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
In
2011 Wisconsin Act 35, the state of Wisconsin established a new system under which DOJ is required to issue licenses authorizing eligible Wisconsin residents to carry concealed weapons in Wisconsin and to certify firearms safety and training instructors. The legislation also authorizes DOJ to issue concealed carry certification cards to qualified former federal law enforcement officers who reside in Wisconsin. Because the concealed carry licensing and certification programs established by Act 35 are new, there are no existing DOJ practices or policies that cover the subject areas of the administrative rules here proposed other than the licensing policies and practices that have been in effect since November 1, 2011.
Most of the proposed rules simply carry into effect the legislative directives set forth in Act 35. In a few areas, the proposed rules articulate policies which give substance to undefined statutory terms or are needed to ensure that licenses and certification cards are issued only to eligible individuals and that all applicants and licensees are properly identified at all times. Such rules are specifically intended to carry out the legislature's intent reflected in Act 35.
For example, the proposed rules provide definitions of such undefined statutory terms as “firearms safety or training course" and “national or state organization that certifies firearms instructors." Such definitions are necessary to give substantive content to these otherwise undefined statutory terms so as to carry out the legislative purposes of ensuring that all licensees have been trained in firearms and firearms safety and of ensuring that all certified firearms instructors have demonstrated the ability and knowledge required for providing training in firearms and firearms safety. The policy alternative of not defining such terms in DOJ's administrative rules would be contrary to those important legislative purposes.
Similarly, the proposed rules specify the types of information that must be included in a training certificate or affidavit in order for DOJ to find that certificate or affidavit to be sufficient to satisfy the training documentation requirements in s.
175.60 (4) (a), Stats. Such specification is necessary to give substantive content to the statutory documentation requirements so as to carry out the legislative purpose of ensuring that every successful applicant for a concealed carry license has adequately demonstrated completion of at least one of the forms of statutorily required training. The policy alternative of not specifying the required contents of an acceptable training certificate or affidavit in DOJ's administrative rules would be contrary to that important legislative purpose.
Likewise, the proposed rule designating those states other than Wisconsin that conduct a background check for concealed carry licensees comparable to Wisconsin's background check is necessary to comply with the statutory requirement of s.
165.25 (12m), Stats. That rule enables law enforcement officers and others to determine whether a particular concealed carry license issued by another state is entitled to recognition as an “out-of-state license" as defined in s.
175.60 (1) (f), Stats. The alternative of not promulgating such a rule would violate the requirements of s.
165.25 (12m), Stats. and would be contrary to the purpose of facilitating recognition of out-of-state licenses.
The proposed rules also contain procedures for issuing a new concealed carry license or certification card to an individual who changes his or her name, and procedures under which DOJ will work cooperatively with courts and law enforcement agencies in relation to any emergency concealed carry license that may be issued by a court, pursuant to s.
175.60 (9r). These procedures are not specifically required by statute but are necessary to carry out the legislative purposes of ensuring that licenses and certification cards are issued only to eligible individuals and that all applicants and licensees are properly identified at all times. The policy alternative of not including such procedures in DOJ's administrative rules would be contrary to those important legislative purposes.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
Those portions of the proposed rules that establish the amount of the fee to be charged for a concealed carry license are expressly and specifically authorized and required by s.
175.60 (7), Stats., which provides:
SUBMISSION OF APPLICATION. An individual may apply for a license under this section with the department by submitting, by mail or other means made available by the department, to the department all of the following:
…
(c) A license fee in an amount, as determined by the department by rule, that is equal to the cost of issuing the license but does not exceed $37. The department shall determine the costs of issuing a license by using a 5-year planning period.
Those portions of the proposed rules that establish procedures for the administrative review by DOJ of any denial, suspension, or revocation of a license are expressly and specifically authorized by s.
175.60 (14g), Stats., which provides:
DEPARTMENTAL REVIEW. The department shall promulgate rules providing for the review of any action by the department denying an application for, or suspending or revoking, a license under this section.
Those portions of the proposed rules that establish the amount of the fee to be charged for the renewal of a concealed carry license are expressly and specifically authorized by s.
175.60 (15) (b), Stats., which provides:
The department shall renew the license if, no later than 90 days after the expiration date of the license, the licensee does all of the following:
…
4. Pays all of the following:
a. A renewal fee in an amount, as determined by the department by rule, that is equal to the cost of renewing the license but does not exceed $12. The department shall determine the costs of renewing a license by using a 5-year planning period.
Those portions of the proposed rules that are not specifically authorized by ss.
175.60 (7),
(14g), and
(15) (b), Stats., as described above, are authorized by s.
227.11 (2) (a), Stats., which 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.
This statute expressly confers on DOJ the general power to determine whether administrative rules interpreting those statutory provisions in Act 35 that are to be enforced or administered by DOJ are necessary to effectuate the purpose of those statutory provisions and, if such necessity is found, to promulgate such administrative rules, as long as those rules do not exceed the bounds of correct interpretation of the governing statutes.
DOJ finds that the rules here proposed are necessary to effectuate those portions of ss.
175.49 and
175.60, Stats., that require DOJ to establish and operate procedures governing:
• the issuance of concealed carry licenses to qualified applicants, including verification that each applicant has satisfied the applicable statutory training requirements, has passed the mandatory background check, and has met all of the other statutory eligibility requirements for a license;
