STATE OF WISCONSIN
Department of Justice
ORDER OF
THE WISCONSIN DEPARTMENT OF JUSTICE
TO ADOPT RULES
The Wisconsin Department of Justice (“DOJ”) proposes an order to amend ch. Jus 10, relating to handgun transfers. The statement of scope for these rules, SS 096-23, was approved by the Governor on October 26, 2023, and published in the Administrative Register, No. 815A1, on November 6, 2023. Pursuant to s. 227.136(1), Stats., on November 15, 2023, the Joint Committee for the Review of Administrative Rules directed DOJ to hold a preliminary public hearing and comment period on scope statement SS 096-23. On January 18, 2024, DOJ held a preliminary public hearing and comment period. Pursuant to s. 227.136(5), Stats., on January 23, 2024, notice was provided to Attorney General Joshua L. Kaul regarding public comments and feedback received during the hearing and comment period. Attorney General Kaul approved the scope statement on January 26, 2024. The Governor approved these rules on _____________. ANALYSIS PREPARED BY THE
WISCONSIN DEPARTMENT OF JUSTICE
Explanation of agency authority:
(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.
(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 s. 175.35(2), Stats. 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 s. 175.35(2g)(c), Stats.; — are authorized by ss. 227.11(2)(a) and 175.35(2g)(c), Stats. 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 s. 175.35(2g)(c), Stats. 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 s. 175.35(2g)(c), Stats. Plain-language analysis:
Section 175.35, Stats. governs the purchase of handguns and requires DOJ to promulgate rules to interpret the statutes. Section 175.35(2), Stats. provides that “[w]hen a firearms dealer sells a handgun, he or she may not transfer possession of that handgun to any other person until all of the following have occurred.” The following must have occurred: “(a) The transferee has provided identification as required by rule under sub. (2g)(a)”; “(b) The transferee has completed the notification form described in sub. (2g)(b)”; “(c) The firearms dealer has conveyed the information from the completed notification form to the department of justice as required by rule under sub. (2g)(b) and requested a firearms restrictions record search”; and “(d) The firearms dealer has received an approval number regarding the firearms restrictions record search under sub. (2g)(c) from the department of justice.” Section 175.35(2)(a)–(d), Stats. Section 175.35(2g)(c), Stats. requires DOJ to “promulgate rules for firearms restrictions record searches regarding transferees under sub. (2), including procedures for all of the following.” Subsection (2g)(c) then lists the following procedures for which DOJ must promulgate rules: 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.
