Wis. Stat. § 175.35(2g)(c)1.–4.a.–c. DOJ previously promulgated the required rules, in Jus 10. Because of a subsequent amendment to Wis. Stat. § 175.35(2g)(c)4.c., however, DOJ seeks to amend Jus 10 so that it is consistent with the statutory amendment. Specifically, the statute was amended to state that DOJ must “make every reasonable effort to determine whether the person is prohibited under state or federal law from possessing a firearm and notify the firearms dealer of the results as soon as practicable but no later than 5 working days after the search was requested.” Wis. Stat. § 175.35(2g)(c)4.c. (emphasis added). DOJ seeks to amend Jus § 10.06(2)(c) and (d) to be consistent with this amended language. (c) Notify dealer of search results. If infeasible during the telephone call required under sub. (1)(d), then as soon after the call as reasonably possible and in no event more than 48 hours after the dealer receives a confirmation number under par. (a)2.b., the department shall notify the dealer by telephone of the results of its record search performed under par. (b). In notifying the dealer, the department shall proceed as follows:
1. If the search shows that transferring a handgun to the transferee is allowed under s. 941.29, Stats., the department shall approve the transfer and provide the dealer an approval number; 2. If the search shows that transferring a handgun to the transferee is prohibited by s. 941.29, Stats., the department shall not approve the transfer and shall provide the dealer a nonapproval number; or 3. If the search shows a felony arrest of the transferee but
shows no recorded disposition of that arrest or if the search shows an out-of-state criminal conviction but fails to show whether that conviction would be a felony in Wisconsin, the department shall, as
soon as reasonably practicable within the 48 hours described in
par. (c)(intro.), notify the dealer by telephone that a three working-day extension of time, as allowed under par. (d)1., is required for the department to complete its record search.
(d) Extension of time for search.
1. The extension of time allowed under par. (c)3. shall extend until midnight of the third complete working day following the day on which the department makes a finding under that subdivision.
2. During the extension under subd. 1., the department shall take all reasonable steps required to determine the disposition of any identified felony arrest of the transferee and to determine whether an out-of-state criminal conviction would be a felony in Wisconsin.
3. As soon as practicable and no later than the end of the extension under subd. 1., the department shall notify the dealer by telephone of the results of its extended search. In notifying the dealer, the department shall proceed as follows:
a. If the extended search shows that transferring a handgun to the transferee is allowed under s. 941.29, Stats., the department shall approve the transfer and provide the dealer an approval number; b. If the extended search shows that transferring a handgun to the transferee is prohibited by s. 941.29, Stats., the department shall not approve the transfer and shall provide the dealer a nonapproval number; c. If the extended search shows a felony arrest of the transferee but shows no recorded disposition of that arrest or if the department cannot reasonably determine whether an out-of-state conviction would be a felony in Wisconsin, the department shall provide the dealer a nonapproval number; or
d. If the extended search shows that a felony arrest is still awaiting disposition, the department shall not provide the dealer a nonapproval number under subpar. c but shall instead approve the transfer and provide the dealer an approval number.
The proposed rules will make Jus 10 consistent with Wis. Stat. § 175.35(2g)(c)4.c. by repealing Jus § 10.06(2)(d) and amending Jus § 10.06(2)(c). 3. Statutory authority for the rules (including the statutory citation and language):
Wisconsin Stat. § 227.11(2)(a) provides:
(2) Rule-making authority is expressly conferred on an agency 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.
Wis. Stat. § 227.11(2)(a)1.–3.
(c) The department of justice shall promulgate rules for firearms restrictions record searches regarding transferees under sub. (2), including procedures for all of the following:
1. A firearms dealer to convey the information from a completed notification form to the department using either a toll-free telephone number provided by the department or an alternative means the department provides.
2. The department to provide the firearms dealer with a confirmation number confirming the receipt of the information under subd. 1.
3. The department to conduct the firearms restrictions record search regarding the transferee. The rules shall include, but not be limited to, a requirement that the department use the transaction information for management of enforcement system and the national crime information center system.
4. The department to notify the dealer as soon after receiving the information under subd. 1. as practicable, of the results of the firearms restrictions record search as follows:
a. If the search indicates that the transferee is prohibited from possessing a firearm under s. 941.29, the department shall provide the firearms dealer with a unique nonapproval number. The department may not disclose to the firearms dealer the reason the transferee is prohibited from possessing a firearm under s. 941.29.
b. If the search indicates that the transferee is not prohibited from possessing a firearm under s. 941.29, the department shall provide the firearms dealer with a unique approval number.
c. If the search indicates that it is unclear whether the person is prohibited under state or federal law from possessing a firearm and the department needs more time to make the determination, the department shall make every reasonable effort to determine whether the person is prohibited under state or federal law from possessing a firearm and notify the firearms dealer of the results as soon as practicable but no later than 5 working days after the search was requested.
These statutes confer on DOJ the power to promulgate rules interpreting provisions in Wis. Stat. § 175.35 that are to be enforced or administered by DOJ to effectuate the purpose of those statutory provisions, as long as the rules do not exceed the bounds of correct interpretation of the governing statutes. DOJ finds that the rules here proposed:
do not exceed the bounds of correct interpretation of Wis. Stat.
§ 175.35(2g)(c);
are authorized by Wis. Stat. §§ 227.11(2)(a) and 175.35(2g)(c) 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. § 175.35(2g)(c) and 2015 Wis. Act 22 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. § 175.35(2g)(c).For these reasons, the proposed rules are authorized by Wis. Stat. §§ 227.11(2)(a) and 175.35(2g)(c).
4. Estimate of the amount of time that state employees will spend to develop the rules and of other resources necessary to develop the rules:
