Wisconsin Legislature: CR 12-027

C. Michigan

Michigan provides by statute that any person who meets specified eligibility and training requirements and who files a proper application shall be issued a license to carry a concealed pistol. Mich. Comp. Laws s. 28.425b(7). Applications are made to the concealed weapon licensing board of the county in which the applicant resides. Mich. Comp. Laws s. 28.425b(1). The information to be included on the application form is prescribed by statute. Mich. Comp. Laws s. 28.425b(1). Michigan affords statutory recognition to non-residents who are licensed by another state to carry a concealed pistol. Mich. Comp. Laws s. 28.432a(1)(h). That recognition is not tied to the nature of any background checks performed by the other state.

A license applicant must demonstrate knowledge and training in the safe use and handling of a pistol by successfully completing a pistol safety training program that meets statutorily prescribed requirements. Mich. Comp. Laws s. 28.425b(7)(c). The training program must consist of at least eight hours of instruction, must cover specified subject areas, must include at least three hours on a firing range, must require firing at least 30 rounds of ammunition, and must be taught by an instructor certified by the state or by a national organization. Mich. Comp. Laws s. 28.425j(1). The training program must provide an instructor-signed certificate indicating that the program meets the statutory requirements and was successfully completed by the license applicant and the applicant must include a copy of that certificate with the license application. Mich. Comp. Laws ss. 28.425b(1)(j) and 28.425j(1)(c).

After submitting an application, an applicant is statutorily required to submit a fingerprint card to the state police. Mich. Comp. Laws s. 28.425b(9)-(10). The fingerprints are sent to the FBI and checked against state police records. Mich. Comp. Laws s. 28.425b(10). Within 10 days after receiving fingerprint comparison results from the FBI, the state police must provide a fingerprint report to the appropriate county concealed weapon licensing board. Mich. Comp. Laws s. 28.425b(10). The licensing board must grant or deny a license within 45 days after receiving the fingerprint report, except that if the state police do not send a fingerprint report to the licensing board within 60 days after results are received from the FBI, then the licensing board shall issue the applicant a temporary license which is valid for 180 days. Mich. Comp. Laws s. 28.425b(13)-(14).

License denial decisions must be issued in writing with reasons and supporting facts. Mich. Comp. Laws s. 28.425b(13). Denial decisions may be appealed to the circuit court of the jurisdiction in which the applicant resides. Mich. Comp. Laws s. 28.425d(1). Court review is based on the written record of the application proceeding, except in cases in which a determination has been made that the applicant is a safety risk, in which case there is a hearing de novo before the court. Mich. Comp. Laws s. 28.425d(1).

If a license holder is charged with a disqualifying criminal offense, the prosecuting attorney must promptly notify the county licensing board. Mich. Comp. Laws s. 28.425m. The prosecutor must also notify the board of the subsequent disposition of the charge. Mich. Comp. Laws s. 28.425m. Upon receiving notice that a licensee has been charged with a disqualifying offense, a licensing board must immediately suspend the person's license until there is a final disposition of the charge. Mich. Comp. Laws s. 28.428(3). The licensee must be given written notice of the suspension and may request a prompt administrative hearing on the suspension. Mich. Comp. Laws s. 28.428(3). If the licensing board determines that a licensee is no longer eligible for a license, the license shall be revoked. Mich. Comp. Laws s. 28.428(4).

D. Illinois

Illinois does not issue licenses for the carrying of concealed weapons.

Summary of factual data and analytical methodologies

The proposed rule is predicated primarily on legal analysis by DOJ staff of the language and requirements of Act 35. DOJ staff also considered factual information about NICS and other state and federal background check systems obtained through DOJ's experience in conducting background checks for law enforcement and handgun hotline purposes. In addition, DOJ staff informally contacted appropriate officials in all other states and requested information about a variety of their requirements and practices related to concealed carry. Finally, DOJ sent formal written inquiries to the attorneys general of all other states, requesting relevant information about the requirements and practices of those states regarding background checks for concealed carry purposes. To date, DOJ has received and processed responses to those inquiries from 33 states. Based upon its legal analysis and the factual information obtained from other states, DOJ has determined that the proposed rules are necessary for DOJ to carry out its responsibilities under Act 35.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

From April 20 through May 4, 2012, pursuant to s. 227.137, Stats., DOJ solicited comments on the economic impact of the proposed rules. Public notification of the comment period was posted on DOJ's public website, the Wisconsin administrative rules website, and the Wisconsin Law Enforcement Network (WILENET). Notification was also sent to the Governor's Office of Regulatory Compliance and to: all DOJ firearms instructors, interested concealed carry training organizations, firearms dealers, district attorneys' offices, technical colleges, and law enforcement agencies.

A total of 14 sets of comments were received and reviewed by DOJ and follow-up conversations with commenters were conducted. Based on the results of that comment and review process, DOJ has concluded that the proposed permanent rules will not have any adverse material effect on the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state and that the proposed rules do not impose any financial or compliance burdens that will have a significant effect on small businesses or a significant economic impact. The content of the comment and review process is described in greater detail in the economic impact report that is being simultaneously submitted by DOJ, pursuant to s. 227.137, Stats.

Effect on Small Business

Based on the comment and review process described above, DOJ has concluded that the proposed permanent rules will not have a significant effect on small business.

Fiscal Estimate and Economic Impact Analysis

Fiscal and economic costs associated with implementing the program are not driven by the proposed rules. Rather, administrative costs are driven by the statutory requirements established in Act 35. DOJ does not believe the rules impose additional costs beyond those necessary to fulfill the requirements of Act 35.

Prior to the enactment of 2011 Wis. Act 35, Wisconsin statutes and administrative rules contained no provisions for issuance of licenses/certification cards to carry concealed weapons to qualified applicants. The proposed rules are the first to address these subjects.

Act 35 requires DOJ to issue licenses authorizing eligible Wisconsin residents to carry concealed weapons in Wisconsin and to certify firearms safety and training instructors. Wisconsin has not issued licenses/certification cards previously, so there is the potential for wide variability in the number of licenses/certification cards issued. Based on other States' experience and additional factors including the percentage of Wisconsin's population with hunting licenses and current handgun sales, the department estimates, at a minimum, that 150,000 licenses/certification cards will be issued over a two year period. The department's best estimate is that it will issue at least 100,000 permits in the first year, approximately 50,000 in the second year, and may issue more than 200,000 over the 5 year period. While these figures represent the department's best estimate, each states experience with citizen participation in concealed carry is unique and the actual number of licenses issues cannot be stated with certainty without the supporting data that will be developed in the first two years. Revenues will be directly correlated with the number of completed applications submitted and approved.

The rules establish a statutorily allowed license fee of $37, as determined by the department, to cover the cost of issuing the license on a five year renewal cycle and a $12 renewal fee for the subsequent five years. Act 35 mandates a $13 fee for the required background check. The annual fee for a certification card for former federal law enforcement officers is $12 for the license and $13 for the background check. The revenue generated by this rule will be dependent on the number of licenses/certification cards issued. It is estimated that these emergency rules will generate approximately $5,000,000 in revenue in FY 2012 and $2,500.000 in FY 2013.

The rules will not have an economic effect on public utilities or their taxpayers. For additional information, please see the fiscal estimates and economic impact analyses relating to the emergency and permanent rules.

Agency Contact Person

The agency contact person is David Zibolski, zibolskidb@doj.state.wi.us, (608) 266-5710.

Emergency Rule Economic Impact Analysis

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
Wis. Admin. Code Chapters Jus 17, Licenses to Carry Concealed Weapons and Jus 18, Certification of Former Federal Law Enforcement Officers
Subject
Establishing standards and procedures for the issuance and administration of licenses authorizing persons to carry concealed weapons; concealed carry certification cards for qualified former federal law enforcement officers; the review of license/certification card decisions by the department; the certification of firearms safety and training instructors; and the recognition by Wisconsin of concealed carry licenses issued by other states.
Fund Sources Affected			Chapter 20, Stats. Appropriations Affected
GPR FED X PRO PRS SEG SEG-S			20.455 (2) (gs) and 20.455 (2) (gu)
Fiscal Effect of Implementing the Rule
No Fiscal Effect X Indeterminate	X Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
Implementation of 2011 WI Act 35. Act 35 created a procedure by which a person may apply to the Department of Justice (DOJ) for a license to carry a concealed weapon. Under s. 175.60, Wis. Stats., DOJ shall issue a license to an applicant who meets all of the statutory requirements. Under s. 175.49, Wis. Stats., DOJ may issue a certification card to qualified former federal law enforcement officers who reside in Wisconsin. The statutes require DOJ to: • Develop and manage a concealed carry license application and renewal process. • Conduct background checks on applicants. • Produce tamper-proof licenses. • Issue a concealed carry license to qualified applicants. • Maintain, update, and publish a list of other states that conduct similar background checks relating to concealed carry licenses. • Maintain a database file of Wisconsin licensees that is accessible to law enforcement. • Maintain and monitor an interface with state courts of all proceedings that may result in the suspension, revocation, or restoration of a concealed carry license. • Establish and manage renewal, suspension, revocation, replacement and, appeal processes. • Produce annual statistical reports relating to licenses issued, denied, suspended and revoked. The department has approved 109,577 concealed carry licenses as of May 24, 2012 and is receiving approximately 2,000 applications per week. Sufficient revenue is being generated to support the program. To fulfill its many new responsibilities, DOJ required additional resources in FY 2012 to support the implementation of Act 35. These resources, both personnel and equipment, were funded with the PR and spending authority increase granted through 16.515 requests approved by the Joint Committee on Finance (JCF). The remaining funding and position authority needed to support the program through FY 2013 will be requested as needed.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
Fiscal and Economic costs associated with implementing the program are not driven by the Administrative Rule. Rather, administrative costs are driven by the statutory requirements established in Act 35. DOJ does not believe the rule imposes additional costs beyond those necessary to fulfill the requirements of Act 35. On April 20, 2012, DOJ solicited public comment from businesses, business sectors, associations representing business, local government units, and individuals that may be affected by the proposed rule was solicited pursuant to s. 227.137(3), Wis. Stats., and Executive Order #50. The public comment period ended on May 4, 2012. Fourteen persons provided comments in response to DOJ's solicitation. Four persons responded merely to state that the proposed rules had no economic impact on them or their business. One person was concerned that the rules did not include the many Hmong and Lao veterans of the Vietnam War who served in the “clandestine services," and thus, did not have a DD214 and could not afford to pay for training. One person was concerned that: Active military were not covered in the rules; DOJ should accept electronic fingerprints; and thought state identification number was not defined. Three persons believed a concealed carry licensee should not have to go through a background check when purchasing a firearm. One person believed that the instructor-student ratio should not be limited. One person advocated for stricter rules that would not accept hunters safety or military experience, included an instructor auditing capacity, and would require photograph and fingerprints upon application. One person felt Jus 18 was more restrictive than federal law. One person corresponded to express a positive economic impact on his business. One person commented that the rules helped to clarify the law.
Based on the responses received and the follow-up conversations with the respondents, there does not appear to be any adverse material effect to the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state as a result of the proposed permanent concealed carry administrative rules. None of the respondents indicated that the proposed rules would have any adverse economic impact on their business or livelihood. The rule will not have an economic effect on public utilities or their taxpayers. Many of the comments related to issues other than the economic impact of the proposed rules. DOJ will give further consideration to those comments during the public hearing process on the proposed rules. Prior to the enactment of 2011 Wis. Act 35, Wisconsin statutes and administrative rules contained no provisions for issuance of licenses/ certification cards to carry concealed weapons to qualified applicants. The proposed rules are the first to address these subjects. Act 35 requires DOJ to issue licenses authorizing eligible Wisconsin residents to carry concealed weapons in Wisconsin and to certify DOJ firearms safety and training instructors. Based on the current volume of concealed carry applications, the department estimates that 120,000 licenses will be issued by the end of FY 2012, while another 100,000 will be issued in FY 2013. While these figures represent the department's experience thus far, each states experience with citizen participation in concealed carry is unique and the actual number of licenses issued over the five year period cannot be stated with certainty without the supporting data that will be developed in the first two years. Revenues will be directly correlated with the number of completed applications submitted and approved. The rule establishes a statutorily allowed license fee of $37, as determined by the department, to cover the cost of issuing the license on a five year renewal cycle and a $12 renewal fee for the subsequent five years. Act 35 mandates a $13 fee for the required background check. The annual fee for a certification card for former federal law enforcement officers is $12 for the license and $13 for the background check. The revenue generated by this rule will be dependent on the number of licenses/ certification cards issued. It is estimated that these permanent rules will generate approximately $5,000,000 in revenue in FY2013.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The proposed rules are predicated on legal analysis by DOJ staff of the language and requirements of Act 35. Based on that analysis, DOJ has determined that the proposed rules are necessary for DOJ to carry out its responsibilities and the legislative directives set forth in Act 35. The alternative to implementing the rule would be non-compliance with Act 35.
Long Range Implications of Implementing the Rule
There are no known long range implications of implementing the rule.
Compare With Approaches Being Used by Federal Government
No comparable information available.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Iowa Iowa provides by statute that any person who meets specified eligibility and training requirements and who files a proper application shall be issued a nonprofessional permit to carry weapons. Iowa Code § 724.7(1). Iowa further provides by statute that a concealed carry permit or license issued by another state to a nonresident of Iowa shall be considered a valid permit or license to carry weapons under Iowa law. Iowa Code § 724.11A. Iowa's statutory recognition of permits issued by other states is not tied to the nature of any background checks performed by those other states. Iowa statutes specify a variety of methods by which a license applicant may demonstrate the requisite knowledge of firearms safety. Iowa Code § 724.9(1). Satisfaction of any of these methods may be documented by submitting: (1) a copy of a certificate of completion or similar document for a course or class that meets the statutory requirements; (2) an affidavit from the instructor or organization conducting such a course or class that attests that the applicant has completed the course or class; or (3) a copy of any document indicating participation in a firearms shooting competition. Iowa's administrative rules give these requirements additional substantive content through definitions of “firearm training and documentation" and “firearm training program." Iowa Admin. Code § 661.91.1(724).
The information to be included on the application form is prescribed by statute. Iowa Code § 724.10(1). Upon receipt of a completed application, the commissioner of public safety is required to conduct a criminal background check to determine whether the applicant is statutorily eligible for a permit. Iowa Code § 724.10(2); Iowa Admin. Code § 661-91.5(724)(1). The commissioner must approve or deny a permit application within 30 days. Iowa Admin. Code § 661-91.5(724)(2). Denial decisions must be issued in writing, with reasons. Iowa Admin. Code § 661-91.5(724)(4). If a permit holder is arrested for a disqualifying offense, the commissioner may immediately suspend the permit and immediately notify the holder in writing. Iowa Admin. Code § 661-91.6(724)(1). If the arrest results in a disqualifying conviction, the permit is revoked. Iowa Adm. Code § 661-91.6(724)(4). If there is no conviction, the permit is reinstated. Iowa Adm. Code § 661-91.6(724)(3). Iowa's administrative rules provide an administrative hearing procedure for appealing the denial, suspension, or revocation of a professional weapons permit, but do not expressly provide an appeal procedure for a non-professional permit. Minnesota Minnesota provides by statute that any person who meets specified eligibility and training requirements and who files a proper application shall be issued a permit to carry a pistol. Minn. Stat. § 624.714(2). Minnesota further requires the state commissioner of public safety to annually establish and publish a list of states whose concealed carry laws are not substantially similar to Minnesota's concealed carry laws. Minn. Stat. § 624.714(16)(a). A nonresident of Minnesota holding a carry permit from a state not on the list may use that permit in Minnesota, subject to the requirements of Minnesota law. Minn. Stat. § 624.714(16)(a). Minnesota's statutory recognition of a permit issued by another state is not directly tied to the nature of any background checks performed by the other state, but is tied to a general determination that the other state's concealed carry laws are substantially similar to Minnesota's. Applications are made to the sheriff of the county in which the applicant resides. Minn. Stat. § 624.714(2). The information to be included on the application form is prescribed by statute. Minn. Stat. § 624.714(3). A permit applicant must have received training in the safe use of a pistol within one year prior to the application. Minn. Stat. § 624.714(2a)(a). To establish such training, an applicant must submit a copy of a certificate signed by the training instructor and attesting that the applicant attended and completed the training. Minn. Stat. § 624.714(3)(c)(2). Upon receiving a permit application, the sheriff is required to conduct a criminal background check to determine whether the applicant is statutorily eligible for a permit. Minn. Stat. § 624.714(4). The sheriff must approve or deny a permit application within 30 days. Minn. Stat. § 624.714(6). A denied applicant is given the right to submit additional information and the sheriff then has 15 days to reconsider the denial. Minn. Stat. § 624.714(6)(b). All denial decisions must be issued in writing, with reasons, including the factual basis for the denial. Minn. Stat. § 624.714(6)(b). A permit is void any time the holder becomes legally prohibited from possessing a firearm. Minn. Stat. § 624.714(8)(a). If the sheriff has knowledge that a permit is void, the sheriff must give written notice to the holder, who must return the permit. Minn. Stat. § 624.714(8)(a). If a permit holder is convicted of a disqualifying offense, the convicting court must take possession of the permit and send it to the issuing sheriff. Minn. Stat. § 624.714(8)(b). A decision denying or revoking a permit may be appealed to the district court of the jurisdiction in which the permit application was submitted. The appeal is heard by the court de novo without a jury. Minn. Stat. § 624.714(12). Michigan Michigan provides by statute that any person who meets specified eligibility and training requirements and who files a proper application shall be issued a license to carry a concealed pistol. Mich. Comp. Laws § 28.425b(7). Applications are made to the concealed weapon licensing board of the county in which the applicant resides. Mich. Comp. Laws § 28.425b(1). The information to be included on the application form is prescribed by statute. Mich. Comp. Laws § 28.425b(1). Michigan affords statutory recognition to non-residents who are licensed by another state to carry a concealed pistol. Mich. Comp. Laws § 28.432a(1)(h). That recognition is not tied to the nature of any background checks performed by the other state. A license applicant must demonstrate knowledge and training in the safe use and handling of a pistol by successfully completing a pistol safety training program that meets statutorily prescribed requirements. Mich. Comp. Laws § 28.425b(7)(c). The training program must consist of at least eight hours of instruction, must cover specified subject areas, must include at least three hours on a firing range, must require firing at least 30 rounds of ammunition, and must be taught by an instructor certified by the state or by a national organization. Mich. Comp. Laws § 28.425j(1). The training program must provide an instructor-signed certificate indicating that the program meets the statutory requirements and was successfully completed by the license applicant and the applicant must include a copy of that certificate with the license application. Mich. Comp. Laws §§ 28.425b(1)(j) and 28.425j(1)(c).
After submitting an application, an applicant is statutorily required to submit a fingerprint card to the state police. Mich. Comp. Laws § 28.425b(9)-(10). The fingerprints are sent to the FBI and checked against state police records. Mich. Comp. Laws § 28.425b(10). Within 10 days after receiving fingerprint comparison results from the FBI, the state police must provide a fingerprint report to the appropriate county concealed weapon licensing board. Mich. Comp. Laws § 28.425b(10). The licensing board must grant or deny a license within 45 days after receiving the fingerprint report, except that if the state police do not send a fingerprint report to the licensing board within 60 days after results are received from the FBI, then the licensing board shall issue the applicant a temporary license which is valid for 180 days. Mich. Comp. Laws § 28.425b(13)-(14). License denial decisions must be issued in writing with reasons and supporting facts. Mich. Comp. Laws § 28.425b(13). Denial decisions may be appealed to the circuit court of the jurisdiction in which the applicant resides. Mich. Comp. Laws § 28.425d(1). Court review is based on the written record of the application proceeding, except in cases in which a determination has been made that the applicant is a safety risk, in which case there is a hearing de novo before the court. Mich. Comp. Laws § 28.425d(1). If a license holder is charged with a disqualifying criminal offense, the prosecuting attorney must promptly notify the county licensing board. Mich. Comp. Laws § 28.425m. The prosecutor must also notify the board of the subsequent disposition of the charge. Mich. Comp. Laws § 28.425m. Upon receiving notice that a licensee has been charged with a disqualifying offense, a licensing board must immediately suspend the person's license until there is a final disposition of the charge. Mich. Comp. Laws § 28.428(3). The licensee must be given written notice of the suspension and may request a prompt administrative hearing on the suspension. Mich. Comp. Laws § 28.428(3). If the licensing board determines that a licensee is no longer eligible for a license, the license shall be revoked. Mich. Comp. Laws § 28.428(4). Illinois Illinois does not issue licenses for the carrying of concealed weapons. See “Analysis by the Department of Justice" in the department's order adopting the permanent rules, DOJ-2012-01.
Name and Phone Number of Contact Person
Brian O'Keefe, Administrator DOJ- Division of Law Enforcement Services 608-266-7598

Permanent Rule Economic Impact Analysis

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
Wis. Admin. Code Chapters Jus 17, Licenses to Carry Concealed Weapons and Jus 18, Certification of Former Federal Law Enforcement Officers
Subject
Establishing standards and procedures for the issuance and administration of licenses authorizing persons to carry concealed weapons; concealed carry certification cards for qualified former federal law enforcement officers; the review of license/certification card decisions by the department; the certification of firearms safety and training instructors; and the recognition by Wisconsin of concealed carry licenses issued by other states.
Fund Sources Affected			Chapter 20, Stats. Appropriations Affected
GPR FED X PRO PRS SEG SEG-S			20.455 (2) (gs) and 20.455 (2) (gu)
Fiscal Effect of Implementing the Rule
No Fiscal Effect X Indeterminate	X Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
Implementation of 2011 WI Act 35. Act 35 created a procedure by which a person may apply to the Department of Justice (DOJ) for a license to carry a concealed weapon. Under s. 175.60, Wis. Stats., DOJ shall issue a license to an applicant who meets all of the statutory requirements. Under s. 175.49, Wis. Stats., DOJ may issue a certification card to qualified former federal law enforcement officers who reside in Wisconsin. The statutes require DOJ to: • Develop and manage a concealed carry license application and renewal process. • Conduct background checks on applicants. • Produce tamper-proof licenses. • Issue a concealed carry license to qualified applicants. • Maintain, update, and publish a list of other states that conduct similar background checks relating to concealed carry licenses. • Maintain a database file of Wisconsin licensees that is accessible to law enforcement. • Maintain and monitor an interface with state courts of all proceedings that may result in the suspension, revocation, or restoration of a concealed carry license. • Establish and manage renewal, suspension, revocation, replacement and, appeal processes. • Produce annual statistical reports relating to licenses issued, denied, suspended and revoked. The department has approved 109,577 concealed carry licenses as of May 24, 2012 and is receiving approximately 2,000 applications per week. Sufficient revenue is being generated to support the program. To fulfill its many new responsibilities, DOJ required additional resources in FY 2012 to support the implementation of Act 35. These resources, both personnel and equipment, were funded with the PR and spending authority increase granted through 16.515 requests approved by the Joint Committee on Finance (JCF). The remaining funding and position authority needed to support the program through FY 2013 will be requested as needed.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
Fiscal and Economic costs associated with implementing the program are not driven by the Administrative Rule. Rather, administrative costs are driven by the statutory requirements established in Act 35. DOJ does not believe the rule imposes additional costs beyond those necessary to fulfill the requirements of Act 35. On April 20, 2012, DOJ solicited public comment from businesses, business sectors, associations representing business, local government units, and individuals that may be affected by the proposed rule was solicited pursuant to s. 227.137(3), Wis. Stats., and Executive Order #50. The public comment period ended on May 4, 2012. Fourteen persons provided comments in response to DOJ's solicitation. Four persons responded merely to state that the proposed rules had no economic impact on them or their business. One person was concerned that the rules did not include the many Hmong and Lao veterans of the Vietnam War who served in the “clandestine services," and thus, did not have a DD214 and could not afford to pay for training. One person was concerned that: Active military were not covered in the rules; DOJ should accept electronic fingerprints; and thought state identification number was not defined. Three persons believed a concealed carry licensee should not have to go through a background check when purchasing a firearm. One person believed that the instructor-student ratio should not be limited. One person advocated for stricter rules that would not accept hunters safety or military experience, included an instructor auditing capacity, and would require photograph and fingerprints upon application. One person felt Jus 18 was more restrictive than federal law. One person corresponded to express a positive economic impact on his business. One person commented that the rules helped to clarify the law. Based on the responses received and the follow-up conversations with the respondents, there does not appear to be any adverse material effect to the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state as a result of the proposed permanent concealed carry administrative rules. None of the respondents indicated that the proposed rules would have any adverse economic impact on their business or livelihood. The rule will not have an economic effect on public utilities or their taxpayers. Many of the comments related to issues other than the economic impact of the proposed rules. DOJ will give further consideration to those comments during the public hearing process on the proposed rules.
Prior to the enactment of 2011 Wis. Act 35, Wisconsin statutes and administrative rules contained no provisions for issuance of licenses/certification cards to carry concealed weapons to qualified applicants. The proposed rules are the first to address these subjects. Act 35 requires DOJ to issue licenses authorizing eligible Wisconsin residents to carry concealed weapons in Wisconsin and to certify DOJ firearms safety and training instructors. Based on the current volume of concealed carry applications, the department estimates that 120,000 licenses will be issued by the end of FY 2012, while another 100,000 will be issued in FY 2013. While these figures represent the department's experience thus far, each states experience with citizen participation in concealed carry is unique and the actual number of licenses issued over the five year period cannot be stated with certainty without the supporting data that will be developed in the first two years. Revenues will be directly correlated with the number of completed applications submitted and approved. The rule establishes a statutorily allowed license fee of $37, as determined by the department, to cover the cost of issuing the license on a five year renewal cycle and a $12 renewal fee for the subsequent five years. Act 35 mandates a $13 fee for the required background check. The annual fee for a certification card for former federal law enforcement officers is $12 for the license and $13 for the background check. The revenue generated by this rule will be dependent on the number of licenses/certification cards issued. It is estimated that these permanent rules will generate approximately $5,000,000 in revenue in FY 2013.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The proposed rules are predicated on legal analysis by DOJ staff of the language and requirements of Act 35. Based on that analysis, DOJ has determined that the proposed rules are necessary for DOJ to carry out its responsibilities and the legislative directives set forth in Act 35. The alternative to implementing the rule would be non-compliance with Act 35.
Long Range Implications of Implementing the Rule
There are no known long range implications of implementing the rule.
Compare With Approaches Being Used by Federal Government
No comparable information available
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Iowa Iowa provides by statute that any person who meets specified eligibility and training requirements and who files a proper application shall be issued a nonprofessional permit to carry weapons. Iowa Code § 724.7(1). Iowa further provides by statute that a concealed carry permit or license issued by another state to a nonresident of Iowa shall be considered a valid permit or license to carry weapons under Iowa law. Iowa Code § 724.11A. Iowa's statutory recognition of permits issued by other states is not tied to the nature of any background checks performed by those other states. Iowa statutes specify a variety of methods by which a license applicant may demonstrate the requisite knowledge of firearms safety. Iowa Code § 724.9(1). Satisfaction of any of these methods may be documented by submitting: (1) a copy of a certificate of completion or similar document for a course or class that meets the statutory requirements; (2) an affidavit from the instructor or organization conducting such a course or class that attests that the applicant has completed the course or class; or (3) a copy of any document indicating participation in a firearms shooting competition. Iowa's administrative rules give these requirements additional substantive content through definitions of “firearm training and documentation" and “firearm training program." Iowa Admin. Code § 661.91.1(724). The information to be included on the application form is prescribed by statute. Iowa Code § 724.10(1). Upon receipt of a completed application, the commissioner of public safety is required to conduct a criminal background check to determine whether the applicant is statutorily eligible for a permit. Iowa Code § 724.10(2); Iowa Admin. Code § 661-91.5(724)(1). The commissioner must approve or deny a permit application within 30 days. Iowa Admin. Code § 661-91.5(724)(2). Denial decisions must be issued in writing, with reasons. Iowa Admin. Code § 661-91.5(724)(4). If a permit holder is arrested for a disqualifying offense, the commissioner may immediately suspend the permit and immediately notify the holder in writing. Iowa Admin. Code § 661-91.6(724)(1). If the arrest results in a disqualifying conviction, the permit is revoked. Iowa Adm. Code § 661-91.6(724)(4). If there is no conviction, the permit is reinstated. Iowa Adm. Code § 661-91.6(724)(3). Iowa's administrative rules provide an administrative hearing procedure for appealing the denial, suspension, or revocation of a professional weapons permit, but do not expressly provide an appeal procedure for a non-professional permit.
Minnesota Minnesota provides by statute that any person who meets specified eligibility and training requirements and who files a proper application shall be issued a permit to carry a pistol. Minn. Stat. § 624.714(2). Minnesota further requires the state commissioner of public safety to annually establish and publish a list of states whose concealed carry laws are not substantially similar to Minnesota's concealed carry laws. Minn. Stat. § 624.714(16)(a). A nonresident of Minnesota holding a carry permit from a state not on the list may use that permit in Minnesota, subject to the requirements of Minnesota law. Minn. Stat. § 624.714(16)(a). Minnesota's statutory recognition of a permit issued by another state is not directly tied to the nature of any background checks performed by the other state, but is tied to a general determination that the other state's concealed carry laws are substantially similar to Minnesota's. Applications are made to the sheriff of the county in which the applicant resides. Minn. Stat. § 624.714(2). The information to be included on the application form is prescribed by statute. Minn. Stat. § 624.714(3). A permit applicant must have received training in the safe use of a pistol within one year prior to the application. Minn. Stat. § 624.714(2a)(a). To establish such training, an applicant must submit a copy of a certificate signed by the training instructor and attesting that the applicant attended and completed the training. Minn. Stat. § 624.714(3)(c)(2). Upon receiving a permit application, the sheriff is required to conduct a criminal background check to determine whether the applicant is statutorily eligible for a permit. Minn. Stat. § 624.714(4). The sheriff must approve or deny a permit application within 30 days. Minn. Stat. § 624.714(6). A denied applicant is given the right to submit additional information and the sheriff then has 15 days to reconsider the denial. Minn. Stat. § 624.714(6)(b). All denial decisions must be issued in writing, with reasons, including the factual basis for the denial. Minn. Stat. § 624.714(6)(b). A permit is void any time the holder becomes legally prohibited from possessing a firearm. Minn. Stat. § 624.714(8)(a). If the sheriff has knowledge that a permit is void, the sheriff must give written notice to the holder, who must return the permit. Minn. Stat. § 624.714(8)(a). If a permit holder is convicted of a disqualifying offense, the convicting court must take possession of the permit and send it to the issuing sheriff. Minn. Stat. § 624.714(8)(b). A decision denying or revoking a permit may be appealed to the district court of the jurisdiction in which the permit application was submitted. The appeal is heard by the court de novo without a jury. Minn. Stat. § 624.714(12). Michigan Michigan provides by statute that any person who meets specified eligibility and training requirements and who files a proper application shall be issued a license to carry a concealed pistol. Mich. Comp. Laws § 28.425b(7). Applications are made to the concealed weapon licensing board of the county in which the applicant resides. Mich. Comp. Laws § 28.425b(1). The information to be included on the application form is prescribed by statute. Mich. Comp. Laws § 28.425b(1). Michigan affords statutory recognition to non-residents who are licensed by another state to carry a concealed pistol. Mich. Comp. Laws § 28.432a(1)(h). That recognition is not tied to the nature of any background checks performed by the other state. A license applicant must demonstrate knowledge and training in the safe use and handling of a pistol by successfully completing a pistol safety training program that meets statutorily prescribed requirements. Mich. Comp. Laws § 28.425b(7)(c). The training program must consist of at least eight hours of instruction, must cover specified subject areas, must include at least three hours on a firing range, must require firing at least 30 rounds of ammunition, and must be taught by an instructor certified by the state or by a national organization. Mich. Comp. Laws § 28.425j(1). The training program must provide an instructor-signed certificate indicating that the program meets the statutory requirements and was successfully completed by the license applicant and the applicant must include a copy of that certificate with the license application. Mich. Comp. Laws §§ 28.425b(1)(j) and 28.425j(1)(c). After submitting an application, an applicant is statutorily required to submit a fingerprint card to the state police. Mich. Comp. Laws § 28.425b(9)-(10). The fingerprints are sent to the FBI and checked against state police records. Mich. Comp. Laws § 28.425b(10). Within 10 days after receiving fingerprint comparison results from the FBI, the state police must provide a fingerprint report to the appropriate county concealed weapon licensing board. Mich. Comp. Laws § 28.425b(10). The licensing board must grant or deny a license within 45 days after receiving the fingerprint report, except that if the state police do not send a fingerprint report to the licensing board within 60 days after results are received from the FBI, then the licensing board shall issue the applicant a temporary license which is valid for 180 days. Mich. Comp. Laws § 28.425b(13)-(14). License denial decisions must be issued in writing with reasons and supporting facts. Mich. Comp. Laws § 28.425b(13). Denial decisions may be appealed to the circuit court of the jurisdiction in which the applicant resides. Mich. Comp. Laws § 28.425d(1). Court review is based on the written record of the application proceeding, except in cases in which a determination has been made that the applicant is a safety risk, in which case there is a hearing de novo before the court. Mich. Comp. Laws § 28.425d(1).
If a license holder is charged with a disqualifying criminal offense, the prosecuting attorney must promptly notify the county licensing board. Mich. Comp. Laws § 28.425m. The prosecutor must also notify the board of the subsequent disposition of the charge. Mich. Comp. Laws § 28.425m. Upon receiving notice that a licensee has been charged with a disqualifying offense, a licensing board must immediately suspend the person's license until there is a final disposition of the charge. Mich. Comp. Laws § 28.428(3). The licensee must be given written notice of the suspension and may request a prompt administrative hearing on the suspension. Mich. Comp. Laws § 28.428(3). If the licensing board determines that a licensee is no longer eligible for a license, the license shall be revoked. Mich. Comp. Laws § 28.428(4). Illinois Illinois does not issue licenses for the carrying of concealed weapons. See “Analysis by the Department of Justice" in the department's order adopting the permanent rules, DOJ-2012-01.
Name and Phone Number of Contact Person
Brian O'Keefe, Administrator DOJ- Division of Law Enforcement Services 608-266-7598

Notice of Hearing

Natural Resources

Environmental Protection — General, Chs. NR 100—

Environmental Protection — Wis. Pollutant Discharge Elimination System, Chs. NR 200—

rulemaking_notices CR 12-027 CR 12-027

(DNR # WT-23-11)

NOTICE IS HEREBY GIVEN THAT pursuant to sections 227.11 (2) (a), 281.41, 283.11, 283.31, and 283.55, Stats., interpreting sections 281.41, 283.11, 283.31, 283.55 and 283.59, Wis. Stats., the Department of Natural Resources will hold public hearings on proposed revisions to Chapters NR 110, NR 205, NR 208 and NR 210, Wis. Adm. Code, relating to the operation and maintenance of sewage collection systems.

Hearing Information

NOTICE IS HEREBY FURTHER GIVEN that hearings will be held on:

Date: Monday, July 16, 2012

Time: 10:00 a.m.

Location: WDNR Northeast Region, Oshkosh Office
Rooms 1 and 2; Suite 700
625 E. County Rd Y
Oshkosh, WI 54901

Date: Tuesday, July 17, 2012

Time: 10:00 a.m.

Location: WDNR West Central Region Headquarters
Room 158
1300 W. Clairemont Ave
Eau Claire, WI 54701

Date: Wednesday, July 18, 2012

Time: 10:00 a.m.

Location: WDNR Southeast Region Headquarters
Rooms 140 and 141
2300 N. Martin Luther King Jr. Drive
Milwaukee, WI 53212

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request as noted below. The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at a hearing site or require other accommodation, please contact Michael Lemcke at (608) 266-2666 (email: michael.lemcke@wisconsin.gov) with specific information on your request at least 10 days before the date of the scheduled hearing

Availability of the Proposed Rule and the Fiscal Estimate and Economic Impact Analysis

The proposed rule revisions, including the Fiscal Estimate and the Economic Impact Analysis may be viewed and downloaded and comments electronically submitted at the following internet site: https://health.wisconsin.gov/adm
rules/public/Rmo?nRmoId=10943 [type “NR 210" in the “search" field].

If you do not have internet access, a copy of the proposed rules and supporting documents, including the Fiscal Estimate and Economic Impact Analysis, may be obtained from Michael Lemcke, DNR-WT/3, P.O. Box 7921, Madison, WI 53707-7921, or by calling (608) 266-2666.

Place Where Comments are to be Submitted and Deadline for Submission

Written comments on the proposed rules may be submitted via U. S. mail to Duane Schuettpelz, DNR-WT/3, P.O. Box 7921, Madison, WI 53707-7921 or by e-mail to: duane.schuettpelz@wisconsin.gov

Comments may be submitted using the internet site where the rule and other documents have been posted [https://health.wisconsin.gov/admrules/public/Rmo?nRmoId=10943]. Please follow the guidelines stated on this site when submitting comments.

Comments submitted on or before July 31, 2012 will be considered in developing a final rule. Written comments whether submitted electronically or by U. S. mail will have the same weight and effect as oral statements presented at the public hearings.

Analysis Prepared by the Department of Natural Resources

The purpose of these proposed rule additions and amendments is primarily to establish clear regulatory requirements associated with unpermitted and potentially hazardous discharges of untreated or partially treated sewage. These discharges are included under the broad definition of “bypass" in current state and federal regulations. The changes will make Wisconsin's rules conform more closely with the U.S. Environmental Protection Agency's (U.S. EPA) interpretation of federal regulations, a long-standing point of concern by that agency. The proposed rules should also address U.S. EPA's concerns regarding existing sanitary sewer overflow (SSO) and bypassing regulations. In a letter dated July 18, 2011, US EPA notified the department that the definitions, regulations and reporting requirements for bypassing in existing state regulations appeared to be inconsistent with federal regulations.

The rules primarily establish definitions and requirements that apply to untreated or partially treated sewage discharges and create consistency in the requirements applicable to publicly owned treatment works and privately owned facilities collecting and treating primarily sanitary sewage. Section 283.31 (4) (d), Wis. Stats., requires “… the permittee shall at all times maintain in good working order and operate as efficiently as possible any facilities or systems of control installed by the permittee to achieve compliance with the terms and conditions of the permit." Because sewage collection systems are an integral part of pollution control facilities, the department has for years regulated the operation and maintenance of these systems to prevent discharges of untreated sewage.

To interpret and implement the statutory requirement for “proper operation and maintenance", the proposed rules require that all owners of sewage collection systems (primarily municipalities) create a capacity, management, operation, and maintenance (CMOM) program. The CMOM program is an effective management tool that owners use to help construct, maintain and operate sustainable sewage collection systems and prevent overflows. It helps sewage collection system owners proactively maintain this significant and valuable community infrastructure by optimizing planned maintenance and prioritizing rehabilitation or replacement activities. These implementation activities are and have been required under the general “proper operation and maintenance" requirements of existing rules. The proposed rule revisions establish more detailed procedures for this requirement.

In addition to municipalities that own and operate both a sewage collection system and a sewage treatment facility, these rules apply to two other types of systems. Satellite sewage collection system owners do not own and operate a sewage treatment facility. Rather, these municipalities, such as an adjacent city or a sanitary district, own and operate only the sewage collection system which discharges into another municipality's sewers for treatment and disposal. Secondly, these rules also apply to a small number of privately-owned sewerage systems in the state that collect, treat and dispose of sewage (e.g., mobile home parks) or that operate as satellite sewage collection systems. The CMOM requirement also applies to these privately-owned and satellite collection systems.

Discharges of untreated or inadequately treated sewage from any place in sewage collection systems designed to collect and transport only sanitary sewage are most commonly called sanitary sewer overflows (SSOs). Systems designed to collect and transport both sanitary sewage and storm water in the same pipes are called combined sewer systems and discharges are referred to as combined sewer overflows (CSOs). Discharges of untreated sewage are a potential hazard to human health and can have significant impacts on water quality. Typically, SSOs occur as a result of either the entry of an excessive amount of precipitation or groundwater into the sanitary sewers (infiltration/inflow (I/I)) or because there is a mechanical, electrical or structural failure in a component of the collection system.

When a sewage collection system has insufficient capacity to transport the sewage and the I/I entering the sewers, the system will relieve itself by discharging the excess flow as a SSO in one or more ways. Sewage may back up into buildings or basements through the building sewer. Sewage may also be discharged to nearby drainage-ways, to surface waters or to the land surface from sewage collection system components such as overflowing manholes or lift station overflow pipes. In some instances, sewage may be discharged, usually into surface waters through a gravity overflow structure or a portable or permanently installed pump. Once wastewater enters the sewage treatment facility, an overflow to the land surface and into nearby surface waters may occur if a treatment unit is too small to accommodate the quantity of flow. This rule-making is intended to establish specific requirements applicable to sewage collection system owners that will prevent or reduce the potential for SSOs and, thereby, prevent water quality impairment and human health hazards associated with such discharges. Effective development and implementation of a CMOM program will reduce the costs incurred by a permittee when building backups cause damage to private property.

Initial regulatory flexibility analysis summary

The only new direct cost of these rules is associated with the preparation of the CMOM by private sewage collection system owners and by municipalities that have not yet developed such a program. The effect of this rule on other small businesses will be indirectly through the actions of municipal sewage collection system owners. Costs for sewage collection system maintenance and improvements are normally assessed to all users of the system, including small business owners. Such costs are determined at the local level. Because the costs to any given system owner will likely be assessed to all system users, the cost to an individual small business owner for this activity will be low.

In some instances, it may be determined through activities identified in the CMOM program that excessive I/I originates from a building sewer. If the building sewer from a small business is identified as a source of excessive I/I, the municipality may require rehabilitation of the building sewer by the property owner. Under the “proper operation and maintenance" provisions of state statutes and rules, sewage collection system maintenance activities that may be identified through the CMOM process are existing requirements and, therefore, are not specific new provisions established by these rules.

In the case of private ownership of a sewerage system (e.g., a mobile home park) identified as a source of SSO, replacement or repair of sewerage system components would be the responsibility of the owner. The number of these cases is likely to be very limited because of the small number of private sewage collection system permittees and, therefore, the statewide cost will be low.

Fiscal Analysis and Economic Impact Analysis Summary

Sewage collection system owners have a fiduciary responsibility to the citizens of their community to operate, maintain, repair, replace or otherwise manage these systems in the best interest of the community. Furthermore, robust and well-maintained sewage collections systems (and other infrastructure) are beneficial to the economic health of communities and attractive to new and existing businesses. Therefore, irrespective of these proposed rule changes, sewage collection system owners will, in the course of normal proper operations, undertake actions to protect community infrastructure, prevent illegal SSOs or other system failures, eliminate building backups and minimize risks to human health and the environment. That being the case, any costs associated with the on-going operation and maintenance of a sewage collection system cannot be directly and solely attributed to these rule revisions.

It is well-documented that the long-term benefits of maintaining public infrastructure significantly outweigh the short-term costs associated with those maintenance activities. Reducing the entry of I/I into sewage collection systems through implementation of a CMOM program will be less costly than responding to unplanned emergencies. Furthermore, the resulting reductions in wastewater volume means that ratepayers (including businesses) will not have to pay the increased costs for additional sewerage system capacity to deal with the excessive flow from leaking sewage collection systems.

Under current state and federal statutes and rules, SSOs are not permitted, with certain specific exceptions, and subject to enforcement action by the state or federal government. Establishing and implementing a CMOM program will reduce permit violations due to SSO discharges, thereby reducing the number of enforcement actions necessary. A well-developed and effectively implemented CMOM program can significantly change the nature of the department's enforcement response and reduce the short-term enforcement-related fiscal implications.

Building backups and damages caused to private property by such incidents and that may be caused by deficiencies in the sewage collection system create potential financial liability issues for the system owner. Implementation of the actions required by the rule will serve to reduce the number of building backups and any subsequent emergency activities for which the permittee may be responsible.

Therefore, the principal “new" cost associated with implementation of these proposed rules is the requirement that all owners of sewage collection systems develop or create a CMOM program. These are primarily municipalities, but also include a small number of private sewage collection systems. Under the proposed rule, creating a CMOM program requires the preparation of all documents and plans necessary to implement activities for the proper operation and maintenance of the sewage collection system. Many system owners already have in place preventative maintenance practices that essentially meet the principles of the CMOM program requirements established in the rules. The department, U.S. EPA and other organizations have been actively promoting such a program among the regulated community for the past several years and the CMOM concept has received considerable support from system owners.

Many small communities, including those serving populations less than 10,000 to 15,000 and most satellite sewage collection systems, likely do not have the full capacity to develop a CMOM program without assistance, training and/or guidance from consulting professionals. Consultants and other businesses involved in sewage collection system work will realize monetary benefits from the services they provide assisting owners with CMOM development.

Statewide costs to develop CMOM programs for all sewage collection system owners is difficult to predict due to the variability in size of systems and the status of each individual community's current operation and maintenance program. Based on information available, the estimated cost to develop a CMOM program for a small community that has minimal documentation of its preventative maintenance activities and has the ability to develop the program in-house could be as low as $1,000. More likely, costs will range upward of $5,000. If a consultant is involved to provide training or was contracted to actually prepare the CMOM documentation, the costs would be in the range of $10,000 to $15,000. CMOM program development for medium-sized communities is estimated to cost in the range of $15,000 to $20,000. Larger systems might expect costs proportionately greater. It should be noted that these costs are estimates only and should not be used for budgeting purposes. Careful, individual assessments of needs are important considerations in determining what the actual costs will be in each case.

Once the CMOM program is created, the permittee will likely have to collect and analyze sewage collection system data and undertake construction or other rehabilitation projects to implement the program. Irrespective of a CMOM program, these activities could be very costly, but are a necessary component to the effective and efficient management and proper operation of a sewage collection system and those costs cannot be directly attributed to the enactment of these rules.

Because existing rules and permits contain reporting requirements similar to those specified in this proposed rule, there should be no or minimal additional cost associated with this activity. If a system owner, under the Compliance Maintenance Annual Reporting (NR 208) rule, identifies more than 4 SSO events (as defined in the rule) in any given year, a “failing grade" for this section of the report will be noted in the reporting system. Some owners have indicated that adverse publicity and potential lawsuits by third parties could result in significant costs, even though the sewage collection system is operating within all design parameters.

The City of Superior believes the proposed rule will impose significant additional costs due to the current unique configuration of their combined sewer system. They have estimated “…a conservative expenditure of 20 million dollars…will result in a 40% increase to the residential user volume discharge."

The additional costs to the department resulting from these rule revisions will be minimal. Minor revisions to permit documents will be necessary and can be easily incorporated into the permit data management system.

Summary of, and comparison with, existing or proposed federal regulation

There are no federal regulations that correspond to ch. NR 110. The revisions to ch. NR 205 will make Wisconsin's rules more compatible with current U.S. EPA regulations. Current NR 205 language applicable to “bypassing" is contained in a section of the rule that applies only to publicly owned treatment works and, therefore, does not apply to bypasses at industrial waste treatment facilities. Federal rules do not distinguish between publicly owned treatment works and industrial facilities. One amendment to NR 205 addresses this issue.

Current federal regulations are ambiguous concerning their application to SSO discharges. Inconsistency in U.S. EPA's interpretation of their regulations has created uncertainty in expectations. Therefore, revisions to ch. NR 210 will create greater specificity with respect to provisions governing SSO discharges. Other changes to NR 205 also make this rule more compatible with U.S. EPA regulations concerning bypasses within treatment facilities that are necessary for purposes of essential maintenance and operation as well as addressing some discrepancies associated with anticipated or scheduled bypasses.

There is no federal regulation mandating establishment and implementation of CMOM programs. U.S. EPA has incorporated CMOM requirements into many enforcement actions across the country. Over the past decade, the practice of diverting sewage around biological treatment units at sewage treatment facilities under specific conditions and recombining or “blending" this diverted wastewater with fully treated effluent has been subject to several U.S. EPA proposals. None of the proposals for allowing blending have been finalized and U.S. EPA's application of the federal “bypass prohibition" rule to blending has been sporadic and inconsistent creating great uncertainty about the acceptability of this practice.

Comparison with similar rules in adjacent states

All the other U.S. EPA Region 5 states (Illinois, Indiana, Michigan, Minnesota and Ohio) and the state of Iowa regulate SSOs through state statutes, regulations or guidance in a manner similar to past interpretation of U.S. EPA's bypass regulation. The general bypassing prohibition language and reporting requirements in these states are similar to current Department of Natural Resources rules and permits. Most states, over the past several years, have implemented enhancements to the reporting requirements and tracking (including making such information available to the public) of SSO releases. None of the states have rules relating to blending, though it is apparent from reviewing information available that this practice is not unusual at some sewage treatment facilities. No adjacent states issue permits to satellite sewage collection systems nor do they specifically require that all sewage collection system owners operate a CMOM program.

Environmental Analysis

The department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under Ch. NR 150, Wis. Adm. Code.

Agency Contacts

Duane Schuettpelz

Department of Natural Resources

P. O. Box 7921

Madison, WI 53707-7921

Email: duane.schuettpelz@wisconsin.gov

Telephone contact: