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 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;
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the issuance of concealed carry certification cards to qualified former federal law enforcement officers residing in Wisconsin, including verification that each applicant has satisfied the applicable firearm certification requirements, has passed the mandatory background check, and has met all of the other statutory eligibility requirements for certification;
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the administration of concealed carry licenses and certifications that have been issued by DOJ, including the maintenance and treatment of records; the receipt and processing of information from courts about individuals subject to a court imposed disqualification from possessing a dangerous weapon; the renewal of licenses and certifications and the replacement of those that are lost, stolen, or destroyed; the processing of address changes or name changes for licenses and certifications; procedures and standards for revoking or suspending a license or certification; procedures for the administrative review by DOJ of any denial, suspension, or revocation of a license or certification; and procedures governing DOJ's cooperation with courts and law enforcement agencies in relation to emergency licenses issued by a court; and
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the qualification and certification of firearms instructors by DOJ and the identification of those firearm instructors who are certified by a national or state organization.
DOJ further finds that the rules here proposed:
•
do not exceed the bounds of correct interpretation of ss.
175.49 or
175.60;
•
are authorized by the statutes described above and are not based on authority derived from any other statutory or non-statutory statements or declarations of legislative intent, purpose, findings, or policy;
•
are authorized as necessary interpretations of the specific requirements of ss.
175.49 and
175.60 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 ss.
175.49 and
175.60.
Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
It is estimated that state employees will spend approximately 500 hours on the rule-making process for the proposed rules, including research, drafting, and compliance with required rule-making procedures.
Description of all Entities that may be Impacted by the Rule
The proposed rules governing procedures and standards for the issuance and administration of concealed carry licenses under s.
175.60, Stats., will directly affect the interests of all Wisconsin residents who wish to apply for a license to carry a concealed weapon. In addition, the proposed rules will also indirectly affect the interest of the general public to the extent that the proper training and licensing of concealed carry licensees generally affects public safety.
The proposed rule designating those states other than Wisconsin that conduct a background check for concealed carry licensees comparable to Wisconsin's background check will make it possible to determine whether a particular concealed carry license issued by another state is entitled to recognition in Wisconsin. The rule thus will affect the interests of all out-of-state concealed carry licensees. The rule will also affect the interests of law enforcement officials and others who may need to determine whether an out-of-state license is entitled to recognition in Wisconsin.
The proposed rules governing the procedures and standards for the qualification and certification of firearms instructors by DOJ under s.
175.60 (4) (b), Stats., will directly affect the interests of all eligible persons who wish to apply for such certification. The proposed rules identifying those firearm instructors who are certified by a national or state organization, as provided in s.
175.60 (4) (a), Stats., will directly affect the interests of all persons who wish to claim such certification as a basis for providing training in firearms and firearm safety under that statute. In addition, the proposed rules will also indirectly affect the interest of the general public to the extent that the proper certification of firearms instructors generally affects public safety.
The proposed rules governing procedures and standards for the issuance and administration of certification cards under s.
175.49 (3), Stats., will directly affect the interests of all former federal law enforcement officers residing in Wisconsin who wish to apply for such certification. In addition, the proposed rules will also indirectly affect the interest of the general public to the extent that the proper firearm certification of former law enforcement officers generally affects public safety.
Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
For persons other than current and former law enforcement officers, the regulation of the carrying of concealed weapons, including the recognition by one state of a concealed carry license issued by a different state, is primarily governed at the state level. Numerous federal statutes and regulations restrict the possession of weapons that have been shipped in interstate commerce, but there are no federal regulations that relate to the licensing of concealed carry by such persons, nor are there federal regulations governing the reciprocal recognition of concealed carry licenses between states or the certification of firearms instructors for concealed carry purposes.
For qualified current and former law enforcement officers, state and local laws restricting the carrying of concealed firearms are federally preempted by 18 U.S.C. ss. 926B-926C (commonly referred to as “H.R. 218"). The provisions in
2011 Wis. Act 35 related to qualified current and former law enforcement officers are state-law codifications of the corresponding provisions in H.R. 218. Similarly, the rules proposed here governing procedures and standards for the issuance and administration of concealed carry certification cards for qualified former federal law enforcement officers also codify corresponding provisions in the federal law.
Anticipated Economic Impact of Proposed Rules
DOJ anticipates that the proposed rules will have minimal or no economic impact.
Contact Person
Assistant Attorney General Clayton P. Kawski, (608) 266-7477.
Natural Resources
Fish, Game, etc., Chs.
NR 1—
This statement of scope was approved by the governor on December 2, 2011.
Rule No.
DNR # CF-26-11 (E), Ch.
NR 64
Relating to
Emergency Rule for Chapter
NR 64, Wis. Adm. Code, to Establish a Trail / Route Combination for All-Terrain Vehicles.
Description of the Objective of the Rule
This emergency rule will establish a new category of all-terrain vehicle (ATV) trails under Ch.
NR 64, Wis. Adm. Code, called a “troute" or a trail/route combination that provides a trail connector and allow grant funding for said troutes.
Nature of Emergency
An emergency rule is needed to bridge the gap between the effective date of permanent revisions of Ch.
NR 64 now underway (CF-16-11) and the anticipated date of the next funding cycle. Having an emergency rule will mean that project sponsors do not lose a construction/maintenance season (summer 2012) and that troutes can be funded with ATV trail grants in July 2012.
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
The department is aware that several all-terrain vehicle (ATV) paths exist that also allow motor vehicle traffic. From the onset of the program, these paths were identified as trails and signed accordingly. The Off Road Vehicle Council and the Wisconsin County Forestry Association propose that the department revise Ch.
NR 64 to accommodate paths used by both ATV and motor vehicles and are used as trail connectors.
These trail/route combinations – often called “troutes" – will be eligible for existing grant funding if it can be shown that the troute existed prior to the effective date of this rule. Revisions to Ch.
NR 64 will include a definition of a troute. Grant funding will be possible for routes that are used as trail connectors, as defined in s.
NR 64.02 (3), Wis. Adm. Code, if the trail connector is proposed after the effective date of this rule. Signage requirements will be needed for troutes. The purpose of the troute combination is so that roads are not used in lieu of ATV trails.
In the absence of the emergency rule, the department would not be able to fund trail maintenance for over one-third of the ATV trails in the state until the permanent rule becomes effective. This would mean the loss of one year of grant funding and the needed trail maintenance for general upkeep and for repair from potential storm damage. Not having established the troute category could impact tourism in ATV trail areas as ATV riders may not be able to ride on continuous trails as the troutes act as trail connectors. Further, decreased maintenance may mean that some ATV riders may chose not to ride on poorly maintained trails and some trail segments may be closed if safety concerns exist due to lack of needed maintenance. Also, this may impact some snowmobile riders as some ATV trails are used year round, including by snowmobiles.
ATVs' use of trails causes soils to shift, creating rough conditions and pockets for standing water. Disrepair of trails creates more difficult riding conditions. Without ongoing maintenance, these pockets grow deeper. Trail ruts pose a safety threat, especially among less-skilled riders including children. ATVs can be used by children as young as twelve years of age if they have completed an ATV safety course.
If ruts are allowed to freeze, they pose a similar safety threat to snowmobiles. Snowmobiles' ski method of traversing the ground requires that the ground be smoothed before the ground freezes to maintain trail safety.
The maintenance and availability of these troute trails also plays a key safety role by offsetting the need for ATV users to travel along roads with higher vehicular traffic in attempt to reach their destination. Consistent trail maintenance is therefore crucial component to the safety and welfare of those recreating in the state.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
23.33 (8) (a), Stats., directs the department to encourage and supervise a system of all-terrain vehicle routes and trails. Likewise, section 23.33 (9) (b) sets forth the various all-terrain vehicle projects eligible for funding. The department seeks to continue the funding of those projects by the implementation of this emergency rule.
Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
The department estimates that approximately 60 hours of existing staff time will be needed to develop this emergency rule.
Description of all Entities that may be Impacted by the Rule
•
Counties or municipalities that apply for grants and work with contractors on trails – Minimal. If a county does not have the funds to maintain their trails, they will most likely close the trail segments that cannot be maintained. Therefore, they would see minimal impact beyond the complaints and questions that they would have to respond to.
•
Contractors that assist with the construction, development, and maintenance of specific trails or small businesses that create trail signs - Moderate. Contractors in some portions of the state rely on the business they received from development projects on these trails such as bridge construction, grading contracts, etc.
•
Local ATV clubs that rely on this maintenance work to pay for equipment purchased. – Significant. Without the maintenance dollars that these clubs receive by providing the majority of labor to maintain, brush, and sign these trails, they would probably dissolve. Approximately 75-90% of the dollars spent are to reimburse clubs for the equipment and labor they provide.
Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
The department is not aware of any counterpart existing or proposed federal regulations that would govern the current or proposed ATV rules.
Estimated Economic Impact
The Department anticipates level 3, minimal or no economic impact from the emergency rule.
Contact Person
Diane Conklin
ATV and Snowmobile Grant Manager
Wisconsin DNR
P.O. Box 397
Cumberland, WI 54829
Phone: 715/822-8583
