State of Wisconsin Department of Justice
Statement of Scope of Proposed Rules
Relating to: Licenses authorizing persons to carry concealed weapons and concealed carry certification cards for qualified former federal law enforcement officers and former out-of-state law enforcement officers who reside in Wisconsin.
1. Description of the objectives of the rules:
The State of Wisconsin Department of Justice (“DOJ”) proposes to update four provisions in Wis. Admin. Code JUS ch. 17 that currently do not conform to statutory requirements. The provisions relate to firearms training courses for obtaining a concealed carry license; issuance of concealed carry licenses to members of the military stationed in Wisconsin; renewal of concealed carry licenses; and the background check fee for concealed carry licensing. The revision of these provisions will not materially alter their scope. DOJ also proposes to update Wis. Admin. Code JUS ch. 18 to reflect statutory provisions authorizing DOJ to issue firearms certification cards to former out-of-state law enforcement officers who reside in Wisconsin. The revision of this chapter will increase its scope by adding a new category of persons authorized to receive firearms certification cards. 2. 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 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 authorized DOJ to issue concealed carry certification cards to qualified former federal law enforcement officers who reside in Wisconsin. DOJ currently administers the licensing and certification card programs under administrative rules promulgated in 2013. See Wis. Admin. Code JUS chs. 17 and 18. Since those rules were promulgated, several relevant statutory provisions have been amended. The rules now need to be updated to reflect the current statutes. A. JUS 17.03(8)
The statutory eligibility requirements for a concealed carry license include a requirement that the applicant provide proof of firearms training or equivalent firearms experience in any of a number of statutorily enumerated forms. See Wis. Stat. § 175.60(3)(g), (4)(a), and (7)(e). Several of the enumerated categories use the phrase “firearms safety or training course.” See Wis. Stat. § 175.60(4)(a)1.b. to e., Stats. The statute does not, however, define the meaning of that phrase.
DOJ’s current administrative rules include a definition of “firearms safety or training course” which provides, in pertinent part, that such a course must be “instructor-led.” JUS 17.03(7). The rules also include a definition of the term “instructor-led” which provides, in pertinent part, that an instructor-led course must have “an instructor-student ratio that does not exceed 50 students per instructor.” JUS 17.03(8). Read together, those definitions require that a “firearms safety or training course” for concealed carry licensing purposes under Wis. Stat. § 175.60(4)(a)1.b. to e. must have a student‑teacher ratio less than or equal to 50:1.
Under Wis. Stat. § 227.10(2m), “[n]o agency may implement or enforce any standard, requirement, or threshold, including as a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with [subchapter II of Wis. Stat. ch. 227.]” Under Wis. Stat. § 227.11(2)(a)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.” In addition, Wis. Stat. § 175.60(2)(b), Stats., prohibits DOJ from imposing conditions, limitations, or requirements on the issuance of a concealed carry license that are not specifically provided for in Wis. Stat. § 175.60. The legality of the 50:1 instructor-student ratio requirement was previously challenged in litigation. In the course of that litigation, DOJ determined that the requirement was not statutorily authorized. DOJ agreed to stop enforcing that requirement and the litigation was settled. Since that time, however, JUS 17.03(8) has not been amended to remove the 50:1 requirement.
The present proposal will amend JUS 17.03(8) to remove the requirement that a “firearms safety or training course,” as defined and used in JUS ch. 17, must have a student‑teacher ratio less than or equal to 50:1. This change is needed in order to make the rule consistent with statutory requirements and with DOJ’s existing practice, and to make it clear to the public that the 50:1 requirement is no longer being enforced. The alternative would leave in the Administrative Code a requirement that DOJ has found to be statutorily unauthorized and that it is no longer enforcing.
B. JUS 17.04(1)(c)
As enacted in 2011, the concealed carry statute provided that only Wisconsin residents were eligible for a Wisconsin concealed carry license. Wis. Stat. § 175.60(3)(f) (2011). In accordance with that provision, DOJ promulgated JUS 17.04(1)(c), which requires DOJ to deny a concealed carry license application if it determines that the applicant is not a Wisconsin resident.
Section 175.60(3)(f) was later amended by 2015 Wisconsin Act 67. As amended, the statute allows a Wisconsin concealed carry license to be issued either to a Wisconsin resident or to a “military resident.” Wis. Stat. § 175.60(3)(f)1.–2. (2021). The phrase “military resident” is statutorily defined as “an individual who is in active service in the U.S. armed forces and is stationed in this state for a term that is scheduled to be at least one year in duration.” Wis. Stat. § 175.60(1)(dm) (2021). The above change to Wis. Stat. § 175.60(3)(f) superseded the residency restriction in JUS 17.04(1)(c), and since that time, DOJ has issued licenses in accordance with the revised statute. DOJ now proposes to amend JUS 17.04(1)(c) to reflect the fact that a Wisconsin concealed carry license may be issued either to a Wisconsin resident or to a member of the military who is not otherwise a Wisconsin resident, but who is stationed in Wisconsin for at least one year. This change is needed in order to make JUS 17.04 consistent with Wis. Stat. § 175.60(3)(f)1.–2. (2021). The alternative would leave in the Administrative Code a residency restriction that is statutorily unauthorized and no longer enforced.
C. JUS 17.08(4)
As enacted in 2011, the concealed carry statute provided that a concealed carry license (other than an emergency license), unless revoked or suspended, was valid for a period of five years from the date on which the license was issued. Wis. Stat. § 175.60(15)(a) (2011). This applied to both a newly issued license and a renewal of a previously issued license. In accordance with that provision, DOJ promulgated JUS 17.08(4), which provides that “[u]nless revoked or suspended, any license other than an emergency license is valid for five years from the date of issuance by the department.”
Section 175.60(15)(a) was later amended by 2017 Wisconsin Act 5. As amended, the statute provides that, if a person renews a concealed carry license before its expiration date, the renewed license is valid for five years from the expiration date of the previous license, rather than five years from the date on which the renewed license was issued. See Wis. Stat. § 175.60(15)(a)1.–2. (2021). The above change in the statutory method for calculating the expiration date of a renewed concealed carry license superseded the method under JUS 17.08(4), and since that time, DOJ has calculated the expiration date of a renewed license in accordance with the revised statute. DOJ now proposes to amend JUS 17.08(4) to reflect the current statutory method for calculating the expiration date of a renewed license. This change is needed in order to make JUS 17.08(4) consistent with Wis. Stat. § 175.60(15)(a)1.–2. (2021). The alternative would leave in the Administrative Code a provision that is statutorily unauthorized and no longer enforced.
D. JUS 17.12(2)
Under Wis. Stat. § 175.60(7)(d), an applicant for a concealed carry license is required to pay a background check fee that is equal to the fee charged under Wis. Stat. § 175.35(2i). When the concealed carry licensing program began in 2011, that fee amount was $13. See Wis. Stat. § 175.35(2i) (2011). That $13 fee was incorporated in DOJ’s administrative rules at JUS 17.12(2).
The $13 fee amount was later superseded by 2013 Wis. Act 20, § 1970q, which amended Wis. Stat. § 175.35(2i) to reduce the applicable statutory fee from $13 to $10. Since that time DOJ has charged the statutory $10 fee. DOJ now proposes to amend JUS 17.12(2) to conform to the fee amount set under Wis. Stat. § 175.35(2i). The alternative would leave in the Administrative Code a fee amount that is statutorily unauthorized and no longer enforced. Under Wis. Stat. § 175.49(3), DOJ is authorized to issue concealed carry certification cards to former law enforcement officers who reside in Wisconsin. Subject to certain criteria and conditions, a former officer carrying such a card may lawfully carry a concealed weapon in this state. See Wis. Stat. § 941.23.
As enacted in 2011, Wis. Stat. § 175.49(3) authorized DOJ to issue concealed carry certification cards to former federal law enforcement officers who reside in Wisconsin. See Wis. Stat. § 175.49(3) (2011). DOJ subsequently promulgated JUS ch. 18, which governs the procedures and standards for issuing such cards. Section 175.49(3) was later amended by 2015 Wisconsin Act 68. As amended, the statute authorizes DOJ to issue concealed carry certification cards not only to former federal officers who reside in Wisconsin, but also to former officers who previously worked for a state or local law enforcement agency in another state and who now reside in Wisconsin. See Wis. Stat. § 175.49(1)(em) and (3)(a) (2021).
