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 § 175.60(3)(f) superseded the residency restriction in JUS 17.04(1)(c), and since that time, DOJ has issued licenses in accordance with the revised statute.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). DOJ now proposes to amend JUS ch. 18 to reflect the above statutory change. This proposal is needed to make JUS ch. 18 consistent with Wis. Stat. § 175.49 (2021), and to adapt the procedures and standards for issuing concealed carry certification cards to accommodate both former federal officers who reside in Wisconsin and former non-federal law officers from other states who now reside in Wisconsin. 3. Statutory authority for the rule (including the statutory citation and language):
The proposed changes to JUS chs. 17 and 18 are authorized by Wis. Stat. § 227.11(2)(a), 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 the provisions in Wis. Stat. § 175.60 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 proposed changes to JUS §§ 17.03(8), 17.04(1)(c), 17.08(4), and 17.12(2), and to JUS ch. 18 are necessary to bring those rules into conformity with the current version of the governing statutes, as described in the preceding sections of this statement. DOJ further finds that the rules here proposed:
-- do not exceed the bounds of correct interpretation of Wis. Stat. §§ 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 Wis. Stat. §§ 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 Wis. Stat. §§ 175.49 and 175.60.
For these reasons, the proposed rule changes are authorized by Wis. Stat. § 227.11(2)(a).
4. 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 40 hours on the rulemaking process for the rules proposed here, primarily for compliance with required rulemaking procedures.
5. 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 Wis. Stat. § 175.60 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 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 Wis. Stat. § 175.49(3) directly affect the interests of all former federal and non-federal law enforcement officers residing in Wisconsin who wish to apply for such certification. In addition, the proposed rules 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.
6. 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.
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 law enforcement officers will implement corresponding provisions in the federal law. The statement of scope for these emergency rules was approved by the governor on November 24, 2021.
