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 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;
•
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;
•
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
•
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 nonstatutory 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.
The proposed rules may be promulgated as emergency rules under s.
227.24 (1) (a), Stats., which provides:
An agency may 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.
DOJ finds that the public welfare necessitates promulgating the proposed rules as emergency rules under s.
227.24 (1) (a), Stats.
Under section 101 of Act 35, most of the provisions of the Act — including the provisions governing the licensing and certification processes covered by the proposed rules and the provisions authorizing the carrying of a concealed weapon by the holder of a license, an out-of-state license, or a certification card — will have an effective date of November 1, 2011. In particular, s.
175.60 (9) will require DOJ to begin receiving and processing license applications and issuing or denying licenses as soon as that provision takes effect on November 1, 2011. The Legislature has thus determined that the public welfare requires the licensing system to take effect on November 1, 2011.
DOJ cannot comply with the requirements of s.
175.60 (9), Stats., and related statutory requirements until it has in effect administrative rules establishing the procedures and standards that will govern DOJ's enforcement and administration of those requirements. It follows that, in order for DOJ to meet its statutory duties that take effect on November 1, 2011, it must complete the promulgation of the administrative rules proposed here prior to that date.
Under the non-emergency rule-making procedures of ch.
227, Stats., before the proposed rules could be promulgated, numerous notice, hearing, and publication requirements would have to be fulfilled — including, but not limited to a public hearing on the proposed rules, preparation of a detailed report including a summary of public comments and DOJ's responses to those comments, and legislative review of the proposed rules. DOJ has determined that it is impossible for all of the required steps in that non-emergency rule-making process to be completed by November 1, 2011. Only if DOJ utilizes the emergency rulemaking procedures of s.
227.24, Stats., can the requisite rules be promulgated and in effect in time for DOJ to meet its statutory duties that take effect on November 1, 2011. The public welfare thus necessitates that the proposed rules be promulgated as emergency rules under s.
227.24, Stats. Once the proposed emergency rules have been promulgated, DOJ will promptly follow up with the promulgation of a permanent version of the rules under the full rulemaking procedures.
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 200 hours on the rulemaking process for the proposed rules, including research, drafting, and compliance with required rulemaking 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 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.
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.
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 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 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. §§ 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.
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 August 24, 2011.
Subject
Revises Chapter
NR 47, relating to the proposed establishment of rules for the WFLGP for Weed Management Areas.
Objective of the Proposed Rule
The objective of this proposed rule change is to create Chapter
NR 47 Subchapter
XIII which establishes the rules for the Wisconsin Forest Landowner Grant Program WFLGP for groups interested in controlling invasive plants in weed management areas authorized in 2007-09 Biennial Budget
(2007 Wis. Act 20).
Description of Policy Issues/Analysis of Policy Alternatives
The creation of Chapter
NR 47 Subchapter
XIII - The Private Forest Landowner Grant Program for Weed Management Areas (WMA) will provide for the implementation and administration of the WFLGP for groups in WMAs authorized in
2007 Wis. Act 20. Rules development will include a system to implement and administer the program; eligible practices; criteria for determining the amount of a matching grant; eligibility requirements for groups receiving grants; requirements for grants; and requirements for establishing weed management areas.
Economic Impact
Level 3 – Little to no economic impact expected. There would be no implementation costs for the Department.
Statutory Authority
Statutory authority for creation of this rule can be found in s.
26.38, Wis. Stats.
Estimate of Time Needed to Develop the Rule
The Department estimates that approximately 155 hours of existing staff time will be needed to develop this rule. This time includes collecting public input at listening sessions, drafting the rule, taking the rule to public hearings, presentations to the Natural Resource Board, legislative review, and rule adoption.
Summary and Comparison of Applicable Federal Regulations
There are no known federal rules which apply to the creation of WFLGP for groups in WMA.
Entities Affected by the Rule
□ Non-industrial private forestland owners wishing to apply for grants to create a forest stewardship plan or implement a forestry practice on their land.
□ Any party, organized landowner group, or organization wishing to apply for a grant for the control of invasive plants.
□ Division of forestry staff involved in the administration of the grant programs.
□ Federal, state and local agencies interested in the control of invasive plants or the implementation of forestry practices on non-industrial private forestland.
□ Any cooperating forester, restoration/landscape consultant, farm coops or other private businesses that may be hired to implement a practice under either grant program.
Agency Contact Person
WFLGP for WMA
Thomas Boos II
Wisconsin Department of Natural Resources
101 South Webster Street
P.O. Box 7921
Madison WI 53707-7921
608-266-9276
Parole Commission
The statement of scope for this rule, SS 410-PAC 1-Sentence Modifications, was approved by the governor on August 4, 2011.
Subject
Revises Chapter
PAC 1, relating to the repeal under
2011 Wis. Act 38 of statutory provisions relating to modification of sentences under s.
973.01, Stats.
Description of the Objective of the Rule
The objective of the rule is to bring Chapter PAC 1 into compliance with
2011 Wis. Act 38. The legislature repealed the provisions of
2009 Wis. Act 28, relating to modification of bifurcated sentences under s.
973.01, Wis. Stats. The commission seeks to repeal and amend the provisions of Chapter
PAC 1 which were promulgated in response to
2009 Wis. Act 28.
Description of Existing Policies and New Policies Included in the Proposed Rule and An Analysis of Policy Alternatives
In response to
2009 Wis. Act 28, the commission promulgated rules to address mechanisms for modification of bifurcated sentences under s. 973.01, Stats. The legislature recently repealed the provisions of Act 28. (See
2011 Wis. Act 38.) The commission seeks to repeal and amend the provisions of Chapter
PAC 1, relating to modification of bifurcated sentences to come into compliance with
2011 Wis. Act 38.
Failure to engage in the rule making process will result in the commission's rules not being in compliance with
2011 Wis. Act 38.
Statutory Authority
Estimate of the Amount of Time State Employees will Spend Developing the Proposed Rule and of Other Resources Necessary to Develop the Rule
The commission estimates that it will take approximately 50 hours to develop this rule, including drafting the rule and complying with rulemaking requirements.
Description of All of the Entities that will be Affected by the Rule
The rule affects persons who are convicted of criminal offenses and receive a sentence under s.
973.01, Stats., Department of Corrections staff, and Parole Commission staff.
Summary of and Preliminary Comparison with Any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
There are no federal regulations which address the issue of modification of sentences under s.
973.01, Wis. Stats.
Contact Person
Kathryn R. Anderson, Chief Legal Counsel, Wisconsin Department of Corrections, 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 53707-7925, (608) 240-5049,
kathryn.anderson@wisconsin.gov.
