The rules will affect all municipal employers, the State of Wisconsin, all municipal and state employees who are eligible to be represented by a labor organization for the purposes of collective bargaining, and all labor organizations who do or wish to represent employees of a municipal employer or of the State of Wisconsin for the purposes of collective bargaining.

There are no existing or proposed federal regulations that address the activities to be regulated by the rules.

Scope Statement prepared July 15, 2011 by Peter G. Davis, Chief Legal Counsel, Wisconsin Employment Relations Commission. (608) 266-2993; peterg.davis@wisconsin.gov.

This statement of scope was approved by the governor in writing on August 24, 2011.

Revises section GAB 1.28 (3) (b), relating to the definition of the term “political purpose."

The present amendment involves only the repeal of the second sentence of s. GAB 1.28 (3) (b). All other portions of s. GAB 1.28 effected on August 1, 2010, including the first sentence of s. GAB 1.28 (3) (b), are unchanged.

The first sentence of s. GAB 1.28 (3) (b), provides that any communication that “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" is a communication “for political purposes" within the meaning of s. 11.01 (16), Stats., and hence is subject to all of the campaign finance regulations under ch. 11 of the Wisconsin Statutes that apply to communications for a political purpose — subject, of course, to any additional requirements or limitations contained in particular statutes.

The second sentence of s. GAB 1.28 (3) (b) additionally identifies communications which are susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. That is, any communications that possess the characteristics enumerated in the second sentence of s. GAB 1.28 (3) (b) would automatically be deemed communications for a political purpose and, as a result, would automatically be subject to the applicable campaign finance regulations under ch. 11 of the Wisconsin Statutes.

As a result of litigation challenging the validity of the August 1, 2010, amendments to s. GAB 1.28, the Board has entered into a stipulation to refrain from enforcing the second sentence of s. GAB 1.28 (3) (b). The Board, through its litigation counsel, has also represented that it does not intend to defend the validity of that sentence and has sought judicial orders permanently enjoining its application or enforcement. This sentence is removed by this rule.

The revised rule will subject to regulation communications that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The revised rule will subject communications meeting this criterion to the applicable campaign finance regulations and requirements of ch. 11, Stats. The scope of regulation will be subject to the United States Supreme Court Decision, Citizens United vs. FEC (No. 08-205), permitting the use of corporate and union general treasury funds for independent expenditures.

Sections 5.05 (1) (f) and 227.11 (2) (a), Stats.

The United States Supreme Court upheld regulation of political communications called “electioneering communications" in its December 10, 2003 decision: McConnell et al. v. Federal Election Commission, et al. (No.02-1674), its June 25, 2007 decision of: Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc. (WRTL II), (No.06-969and 970), and pursuant to its January 21, 2010 decision of: Citizens United vs. FEC (No. 08-205).

The McConnell decision is a review of relatively recent federal legislation – The Bipartisan Campaign Reform Act of 2002 (BCRA) – amending, principally, the Federal Election Campaign Act of 1971 (as amended). A substantial portion of the McConnell Court's decision upholds provisions of BCRA that establish a new form of regulated political communication – “electioneering communications" – and that subject that form of communication to disclosure requirements as well as to other limitations, such as the prohibition of corporate and labor contributions for electioneering communications in BCRA ss. 201, 203. BCRA generally defines an “electioneering communication" as a broadcast, cable, or satellite advertisement that “refers" to a clearly identified federal candidate, is made within 60 days of a general election or 30 days of a primary election and, if for House or Senate elections, is targeted to the relevant electorate.

In addition, the Federal Election Commission (FEC) promulgated regulations further implementing BCRA (generally 11 CFR Parts 100-114) and made revisions incorporating the WRTL II decision by the United States Supreme Court (generally 11 CFR Parts 104, 114). The FEC regulates “electioneering communications."

Any person, committee, individual or political group that will sponsor communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

20 hours.

This statement of scope was approved by the governor on August 31, 2011.

These proposed emergency rules will be placed in a new chapter, to be designated Wis. Admin. Code Chapter Jus 17. Rule numbers have not yet been designated.

Licenses authorizing persons to carry concealed weapons; concealed carry certification cards for qualified former federal law enforcement officers; and the certification of firearm safety and training instructors.

The State of Wisconsin Department of Justice (“DOJ") proposes to promulgate emergency administrative rules relating to the implementation of DOJ's statutory responsibilities under 2011 Wis. Act 35 regarding licenses authorizing persons to carry concealed weapons, concealed carry certification cards for qualified former federal law enforcement officers, and the certification of firearm safety and training instructors. The proposed emergency rules will cover four subject areas:

First, there will be rules governing the issuance of concealed carry licenses to qualified applicants by DOJ pursuant to s. 175.60, Stats. These rules will govern all aspects of the licensing process and will describe the procedures and standards under which DOJ will process applications, set and collect fees, and verify that each license applicant meets all of the license eligibility requirements under s. 175.60 (3), Stats., including procedures and standards for certifying that an applicant has satisfied the applicable statutory training requirements and procedures for conducting the statutorily required background check of each applicant to determine whether the applicant is prohibited from possessing a firearm under state or federal law. The background check rules will include procedures for conducting fingerprint checks to verify the identity of any applicant who is initially found to be ineligible based on the background check.

Second, the rules will govern the administration of concealed carry licenses that have been issued by DOJ. These rules will cover: the maintenance and treatment of licensing records by DOJ; the receipt and processing by DOJ of information from courts regarding individuals subject to a court-imposed disqualification from possessing a dangerous weapon; procedures for renewing a license and replacing a license that is lost, stolen, or destroyed; procedures for processing address changes or name changes by licensees; procedures and standards for revoking or suspending a license; procedures for the administrative review by DOJ of any denial, suspension, or revocation of a license; and procedures governing DOJ's cooperation with courts and law enforcement agencies in relation to emergency licenses issued by a court.

Third, the rules will govern the procedures and standards under which DOJ will issue concealed carry certification cards to qualified former federal law enforcement officers pursuant to s. 175.49, Stats. These rules will govern all aspects of the certification process for former federal officers who reside in Wisconsin and will describe the procedures and standards under which DOJ will process applications, set and collect fees, and verify that each applicant meets all of the certification eligibility requirements under s. 175.49 (3) (b), Stats., including procedures and standards for certifying that an applicant has satisfied the firearm qualification requirement under s. 175.49 (3) (b) 5., Stats., and procedures for conducting the statutorily required background check of each applicant to determine whether the applicant is prohibited from possessing a firearm under federal law. The background check procedures will include procedures for checking fingerprints to verify the identity of any certification applicant who is initially found to be ineligible based on the background check. The rules will also cover: the maintenance and treatment of certification records by DOJ; procedures for renewing a certification card and replacing a card that is lost, stolen, or destroyed; procedures for processing address changes or name changes by a certified former federal officer; procedures and standards for revoking or suspending a certification; and procedures for the administrative review by DOJ of any denial, suspension, or revocation of a certification.

Fourth, the rules will govern the procedures and standards for the qualification and certification of firearms instructors by DOJ under s. 175.60 (4) (b), Stats., and will provide a definition identifying those firearm instructors who are certified by a national or state organization, as provided in s. 175.60 (4) (a), Stats.

DOJ's existing administrative rules are located at Wis. Admin. Code chs. Jus 8-12, 14, and 16. The emergency rules proposed here will be placed in a new chapter, to be designated Wis. Admin. Code Chapter Jus 17, and to be titled “Licenses to carry a concealed weapon." In addition to the rules proposed here, the new chapter will also contain another emergency rule — being separately promulgated by DOJ — that lists those states that issue a permit, license, approval, or other authorization to carry a concealed weapon that is entitled to recognition in Wisconsin under s. 175.60 (1) (f), Stats.

In 2011 Wisconsin Act 35, the state of Wisconsin established a new system under which DOJ is required to issue licenses authorizing eligible Wisconsin residents to carry concealed weapons in Wisconsin and to certify firearms safety and training instructors. The legislation also authorizes DOJ to issue concealed carry certification cards to qualified former federal law enforcement officers who reside in Wisconsin. Because the concealed carry licensing and certification programs established by Act 35 are entirely new, there are no existing DOJ practices or policies that cover the subject areas of the administrative rules here proposed.

Most of the proposed rules will simply carry into effect the legislative directives set forth in Act 35. In a few areas, the proposed rules will articulate policies which give substance to undefined statutory terms or are needed to ensure that licenses and certification cards are issued only to eligible individuals and that all applicants and licensees are properly identified at all times. Such rules are specifically intended to carry out the legislature's intent reflected in Act 35.

For example, the proposed rules will provide definitions of such undefined statutory terms as “firearms safety or training course" and “national or state organization that certifies firearms instructors." Such definitions are necessary to give substantive content to these otherwise undefined statutory terms so as to carry out the legislative purposes of ensuring that all licensees have been trained in firearms and firearms safety and of ensuring that all certified firearms instructors have demonstrated the ability and knowledge required for providing training in firearms and firearms safety. The policy alternative of not defining such terms in DOJ's administrative rules would be contrary to those important legislative purposes.

Similarly, the proposed rules will specify the types of information that must be included in a training certificate or affidavit in order for DOJ to find that certificate or affidavit to be sufficient to satisfy the training documentation requirements in s. 175.60 (4) (a), Stats. Such specification is necessary to give substantive content to the statutory documentation requirements so as to carry out the legislative purpose of ensuring that every successful applicant for a concealed carry license has adequately demonstrated completion of at least one of the forms of statutorily required training. The policy alternative of not specifying the required contents of an acceptable training certificate or affidavit in DOJ's administrative rules would be contrary to that important legislative purpose.

The proposed rules will also contain procedures for conducting fingerprint checks to verify the identity of any license or certification applicant who is initially found to be ineligible based on a background check, procedures for issuing a new concealed carry license or certification card to an individual who changes his or her name, and procedures under which DOJ will work cooperatively with courts and law enforcement agencies in relation to any emergency concealed carry license that may be issued by a court, pursuant to s. 175.60 (9r). These procedures are not specifically required by statute but are necessary to carry out the legislative purposes of ensuring that licenses and certification cards are issued only to eligible individuals and that all applicants and licensees are properly identified at all times. The policy alternative of not including such procedures in DOJ's administrative rules would be contrary to those important legislative purposes.

A.   Section 175.60 (7), Stats.

B.   Section 175.60 (14g), Stats.

C.   Section 175.60 (15) (b), Stats.

D.   Section 227.11 (2) (a), Stats.

E.   Section 227.24 (1) (a), Stats.

It is estimated that state employees will spend approximately 200 hours on the rulemaking process for the proposed rules, including research, drafting, and compliance with required rulemaking procedures.