No. 34800 (Emergency Rule): Rule R722-300. Concealed Firearm Permit and Instructor Rule

DAR File No.: 34800
Filed: 05/10/2011 03:03:46 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Based on the passage of H.B. 214, H.B. 257 1st Sub, and S.B. 36 1st Sub, 2011 General Legislative Session, which made substantial changes to the Concealed Firearm Act, this emergency rule is necessary to avoid conflicts between new statute and language in current rule. A rule has been submitted through the regular DAR process and is currently in the public comment process. The earliest this amended rule will be effective is 06/07/2011. (DAR NOTE: H.B. 214, H.B. 257, and S.B. 36 were all effective 05/10/2011. The proposed amendment to Rule R722-300 is under DAR No. 34679 in the May 1, 2011, Bulletin.)

Summary of the rule or change:

This emergency rule provides procedures that are consistent with the new statute.

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: Based on the passage of H.B. 214, H.B. 257 1st Sub, and S.B. 36 1st Sub, which made substantial changes to the Concealed Firearm Act, this emergency rule is necessary to avoid conflicts between new statute and language in current rule. This emergency rule provides procedures that are consistent with the new statute.

State statutory or constitutional authorization for this rule:

• Title 53, Chapter 5

Anticipated cost or savings to:

the state budget:

No aggregate anticipated cost or savings to the state budget. This emergency rule addresses the changes in the actual process of applying for a Concealed Firearm Permit (CFP), the renewal of the permit, and the changes in fees. The statutory changes made will not affect the state budget nor are there any anticipated costs or savings.

local governments:

No aggregate anticipated cost or savings to local government. This emergency rule addresses the changes in the actual process of applying for a Concealed Firearm Permit (CFP), the renewal of the permit, and the changes in fees. The statutory changes made will not affect local government nor are there any anticipated costs or savings.

small businesses:

No aggregate anticipated cost or savings to small businesses. This emergency rule addresses the changes in the actual process of applying for a Concealed Firearm Permit (CFP), the renewal of the permit, and the changes in fees. The statutory changes made will not affect small businesses nor are there any anticipated costs or savings.

persons other than small businesses, businesses, or local governmental entities:

No aggregate anticipated cost or savings to persons other than small businesses, businesses, or local government entities. This emergency rule addresses the changes in the actual process of applying for a Concealed Firearm Permit (CFP), the renewal of the permit, and the changes in fees. The statutory changes made will not affect persons other than small businesses, businesses, or local government entities nor are there any anticipated costs or savings.

Compliance costs for affected persons:

No compliance costs. As this emergency rule addresses changes in the actual process for applying for a CFP, the renewal of the CFP, and the changes in fees there are not anticipated compliance costs for any of the persons addressed in aggregate cost information above.

Comments by the department head on the fiscal impact the rule may have on businesses:

This emergency rule does not have any fiscal impact on businesses because it only describes the procedures necessary for an individual to obtain a concealed firearms permit or a concealed firearm instructor certification.

D. Lance Davenport, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Public Safety
Criminal Investigations and Technical Services, Criminal Identification
3888 W 5400 S
TAYLORSVILLE, UT 84118

Direct questions regarding this rule to:

• Alice Moffat at the above address, by phone at 801-965-4939, by FAX at 801-965-4944, or by Internet E-mail at [e-mail]

This rule is effective on:

05/10/2011

Authorized by:

Alice Moffat, Bureau Chief

RULE TEXT

R722. Public Safety, Criminal Identifications and Technical Services, Criminal Identification.

R722-300. Concealed Firearm Permit and Instructor Rule.

R722-300-1. Purpose.

The purpose of this rule is to establish procedures whereby the bureau administers the Concealed Firearms Act in accordance with Title 53, Chapter 5, Part 7.

 

R722-300-2. Authority.

This rule is authorized by Section [53-5-704(16)]53-5-704(17) which provides that the commissioner may make rules necessary to administer Title 53, Chapter 5.

 

R722-300-3. Definitions.

(1) Terms used in this rule are defined in Sections 53-5-702, 53-5-711, 76-10-501.

(2) In addition:

(a) "applicant" means an individual seeking to obtain or renew a permit, a temporary permit, an instructor certification, or a LEOJ permit from the bureau;

(b) "certified firearms instructor" means an individual certified by the bureau pursuant to Section [53-5-704(8)]53-5-704(9) who can certify that an applicant meets the general firearm familiarity requirement under Section [53-5-704(7)]53-5-704(8);

(c) " certified firearms instructor official seal" means a red, self-inking stamp containing the information required in Subsection [53-5-704(10)(a)(iii)(C)]53-5-704(11)(a)(iii) which meets the design requirements described on the bureau's website;

(d) "crime of violence" means a crime under the laws of this state, any other state, the United States, or any district, possession, or territory of the United States which has, as an element, the use, threatened use, or attempted use of physical force or a dangerous weapon;

(e) "felony" means a crime under the laws of this state, any other state, the United States, or any district, possession, or territory of the United States for which the penalty is a term of imprisonment in excess of one year;

(f) "FBI" means the Federal Bureau of Investigation;

(g) "instructor certification" means a concealed firearm instructor certification issued by the bureau pursuant to Section [53-5-704(8)]53-5-704(9);

(h) "LEOJ permit" means a permit to carry a concealed firearm issued to a judge or law enforcement official by the bureau pursuant to 53-5-711;

(i) "nonresident" means a person who:

(i) does not live in the state of Utah; or

(ii) has established a domicile outside Utah, as that term is defined in Section 41-1a-202.

[(i)](j) "NRA" means the National Rifle Association;

[(j)](k) "offense involving domestic violence" means a crime under the laws of this state, any other state, the United States, or any district, possession, or territory of the United States involving any of the conduct described in:

(i) Section 77-36-1; or

(ii) 18 U.S.C Section 921(a)(33);

[(k)](l) "offense involving moral turpitude" means a crime under the laws of this state, any other state, the United States, or any district, possession, or territory of the United States involving conduct which:

(i) is done knowingly contrary to justice, honesty, or good morals;

(ii) has an element of falsification or fraud; or

(iii) contains an element of harm or injury directed to another person or another's property;

[(l)](m) "offense involving the use of alcohol" means a crime under the laws of this state, any other state, the United States, or any district, possession, or territory of the United States involving any of the conduct described in:

(i) Section 32A-12-209;

(ii) Section 32A-12-220;

(iii) Section 41-6a-501(2) related to the use of alcohol;

(iv) Section 41-6a-526; or

(v) Section 76-10-528 related to carrying a dangerous weapon while under the influence of alcohol;

[(m)](n) "offense involving the unlawful use of narcotics or controlled substances" means:

(i) any offense listed in Section 41-6a-501(2) involving the use of a controlled substance;

(ii) any offense involving the use or possession of any controlled substance found in Title 58, Chapters 37, 37a, or 37b; or

(iii) the crime of carrying a dangerous weapon while under the influence of a controlled substance pursuant to Section 76-10-528;

[(n)](o) "past pattern of behavior involving unlawful violence" means verifiable incidents, regardless of whether there has been an arrest or conviction, that would lead a reasonable person to believe that an individual has a violent nature and would be a danger to themselves or others, including an attempt or threat to commit suicide.

[(o)](p) "permit" means a permit to carry a concealed firearm issued by the bureau pursuant to Section 53-5-704;

[(p)](q) "POST" means the Utah Department of Public Safety, Division of Peace Officer Standards and Training;

[(q)](r) "revocation" means the permanent deprivation of a permit, instructor certification, or certificate of qualification. Revocation of a permit, instructor certification, or certificate of qualification does not preclude an individual from applying for a new permit, instructor certification, or certificate of qualification if the reason for revocation no longer exists;

[(r)](s) "suspension" means the temporary deprivation, for a specified period of time, of a permit, instructor certification, or certificate of qualification; and

[(s)](t) "temporary permit" means a temporary permit to carry a concealed firearm issued by the bureau pursuant to Section 53-5-705.

 

R722-300-4. Application for a Permit to Carry a Concealed Firearm.

(1)(a) An applicant seeking to obtain a permit must submit a completed permit application packet to the bureau.

(b) The permit application packet shall include:

(i) a written application form provided by the bureau which shall include the address of the applicant's permanent residence;

(ii) a photocopy of a state-issued driver license or identification card;

(iii) one recent color photograph of passport quality which contains the applicant's name written on the back of the photograph;

(iv) one completed FBI applicant fingerprint card (Form FD-258) with the applicant's legible fingerprints;

[(v) a non-refundable processing fee of $65.25, in the form of cash, check, money order, or credit card, which consists of a $35.00 fee established by Section 53-5-707 and a $30.25 FBI fingerprint processing fee;](v) a non-refundable processing fee of $60.00 for Utah residents and $65.00 for nonresidents, in the form of cash, check, money order, or credit card, which consists of the fee established by Section 53-5-704 and 53-5-707, along with the FBI fingerprint processing fee;

(vi) evidence indicating that the applicant has general familiarity with the types of firearms to be concealed as required by Subsection [53-5-704(5)(d)]53-5-704(6)(d);[ and]

(vii) any mitigating information that the applicant wishes the bureau to consider when determining whether the applicant meets the qualifications set forth in Subsection 53-5-704(2)(a) ; and

(viii) if the applicant is a nonresident who resides in a state that recognizes the validity of the Utah permit or has reciprocity with Utah's concealed firearm permit law, a copy of the applicant's current concealed firearm permit or concealed weapon permit issued by the applicant's state of residency.

(2) An applicant may establish evidence of general familiarity with the types of firearms to be concealed as required in Subsection [53-5-704(5)(d)]53-5-704(6)(d) by submitting a signed certificate, issued within one year of the date of the application, bearing a certified firearms instructor's official seal, certifying that the applicant has completed the required firearms course of instruction established by the bureau.

(3) If the applicant is employed as a law enforcement officer, the applicant:

(i) shall not be required to pay the application fee; and

(ii) may establish evidence of general familiarity with the types of firearms to be concealed as required in Subsection [53-5-704(5)(d)]53-5-704(6)(d) by submitting documentation from a law enforcement agency located within the state of Utah indicating that the applicant has successfully completed the firearm qualification requirements of that agency within the last five years.

(4)(a) Upon receipt of a complete permit application packet, the bureau shall conduct a thorough background investigation to determine if the applicant meets the requirements found in Subsections 53-5-704(2) and (3).

(b) The background investigation shall consist of the following:

(i) sending the fingerprint card to the FBI for a review of the applicant's criminal history record pursuant to Section 53-5-706; and

(ii) verifying the accuracy of the information provided in the application packet through a search of local, state and national records which may include, but is not limited to, the following:

(A) the Utah Computerized Criminal History database;

(B) the National Crime Information Center database;

(C) the Utah Law Enforcement Information Network;

(D) state driver license records;

(E) the Utah Statewide Warrants System;

(F) juvenile court criminal history files;

(G) expungement records maintained by the bureau;

(H) the National Instant Background Check System;

(I) the Utah Gun Check Inquiry Database;

(J) Immigration and Customs Enforcement records; and

(K) Utah Department of Corrections Offender Tracking System; and

(L) the Mental Gun Restrict Database.

(5)(a) If the background check indicates that an applicant does not meet the qualifications set forth in Subsection 53-5-704(2)(a), the bureau shall consider any mitigating circumstances submitted by the applicant.

(b) If the applicant does not meet the qualifications set forth in Subsection 53-5-704(2)(a) because the applicant has been convicted of a crime, the bureau may find that mitigating circumstances exist if the applicant was not convicted of a registerable sex offense, as defined in Subsection 77-27-21.5(1)(n), and the following time periods have elapsed from the date the applicant was convicted or released from incarceration, parole, or probation, whichever occurred last:

(i) five years in the case of a class A misdemeanor;

(ii) four years in the case of a class B misdemeanor; or

(iii) three years in the case of any other misdemeanor or infraction.

(c) Notwithstanding any other provision, the bureau may not grant a permit if the applicant does not meet the qualifications in Subsection 53-5-704(2)(a)(viii).

(6)(a) If the bureau determines that the applicant meets the requirements found in Subsection 53-5-704(2) and (3), the bureau shall issue a permit to the applicant within 60 days.

(b) The permit shall be mailed to the applicant at the address listed on the application.

(7)(a) If the bureau determines that the applicant does not meet the requirements found in Subsection 53-5-704(2) and (3), the bureau shall mail a letter of denial to the applicant, return receipt requested.

(b) The denial letter shall state the reasons for denial and indicate that the applicant has a right to request a review hearing before the board by filing a petition for review within 60 days as provided in Section [53-5-704(15)]53-5-704(16).

 

R722-300-5. Application for a Concealed Firearms Instructor Certification.

(1)(a) An applicant seeking to be certified as a Utah concealed firearms instructor must submit a completed instructor certification application packet to the bureau.

(b) The instructor certification application packet shall include:

(i) a written instructor certification application form provided by the bureau;

(ii) a photocopy of a state-issued driver license or identification card;

(iii) one recent color photograph of passport quality which contains the applicant's name written on the back of the photograph;

(iv) a non-refundable processing fee of $50.00, in the form of cash, check, money order, or credit card;

(v) evidence that the applicant has completed a firearm instructor training course from the NRA or POST, or received training equivalent to one of these courses, [a current NRA certification or its equivalent] as required by Subsection [53-5-704(8)(a)(iii)]53-5-704(9)(a)(iii); and

(vi) evidence that the applicant has completed the course of instruction provided under the direction of the bureau and passed the certification test provided in Subsection [53-5-704(8)(c)]53-5-704(9)(c), within one year of the date of the application.

[ (2) An applicant may meet the requirements of Subsection 53-5-704(8)(a)(iii) by providing a certificate of completion from one of the following:

(a) a NRA firearms instructor training program; or

(b) a POST firearms instructor training program.

(4) When reviewing an application for certification the bureau shall conduct a background investigation to ensure that the instructor is eligible to possess a firearm under Section 76-10-503 and federal law.

] [(5)](2)(a) If the bureau determines that an applicant meets the requirements found in Subsection [53-5-704(8)]53-5-704(9), the bureau shall issue an instructor certification to the applicant.

(b) An instructor certification identification card shall be mailed to the applicant at the address listed on the application.

[(6)](3)(a) If the bureau determines that the applicant does not meet the requirements found in Subsection [53-5-704(8)]53-5-704(9), the bureau shall mail a denial letter to the applicant, return receipt requested.

(b) The denial letter shall state the reasons for denial and indicate that the applicant has a right to request a review hearing before the board by filing a petition for review within 60 days as provided in Section [53-5-704(15)]53-5-704(16).

 

R722-300-6. Renewal of a Concealed Firearms Permit or Concealed Firearms Instructor Certification.

(1)(a) An applicant seeking to renew a permit or an instructor certification must submit a completed renewal packet to the bureau.

(b) The renewal packet shall include:

(i) a written renewal form provided by the bureau which shall include the current address of the applicant's permanent residence;

(ii) one recent color photograph of passport quality which contains the applicant's name written on the back of the photograph; and

(iv) a non-refundable processing fee in the form of cash, check, money order, or credit card which is [$10.00]$15.00 fee to renew a permit or $25.00 fee to renew an instructor certification.

(2) In addition to the items listed in Subsection (1)(b), an instructor seeking to renew an instructor certification must submit evidence that the instructor has completed the course of instruction provided under the direction of the bureau and passed the certification test provided in Subsection [53-5-704(8)(c)]53-5-704(9)(c), within one year of the date of the application.

(3) A renewal packet may be submitted no earlier than 60 days prior to the expiration of a current permit or certification.

(4) A fee consisting of $7.50 will be collected for renewal packets submitted on a permit or an instructor certification that has been expired for more than thirty days but less than one year.

(b) Renewal packets for a permit or an instructor certification which has been expired for more than one year will not be accepted and the applicant will have to re-apply for a permit or an instructor certification.

(5) When renewing a permit or an instructor certification the bureau shall conduct a background investigation.

(6)(a) If the bureau determines that the applicant meets the requirements to renew a permit or an instructor certification, the bureau shall mail the renewed permit or instructor certification identification card to the applicant.

(b) The renewed permit or instructor certification identification card shall be mailed to the applicant at the address listed on the renewal application.

(7)(a) If the bureau determines that the applicant does not meet the requirements to renew a permit or an instructor certification, the bureau shall mail a denial letter to the applicant, return receipt requested.

(b) The denial letter shall state the reasons for denial and indicate that the applicant has a right to request a review hearing before the board by filing a petition for review within 60 days as provided in Section [53-5-704(15)]53-5-704(16).

 

R722-300-8. Application for a LEOJ Permit.

(1)(a) In order to obtain a LEOJ permit under Section 53-5-711, an applicant must submit a completed permit application packet to the bureau as provided by R722-300-4.

(b) In addition, the applicant must provide written documentation to establish to the satisfaction of the bureau that:

(i) the applicant is a law enforcement official or judge as defined in Section 53-5-711; and

(ii) that the applicant has completed the course of training required by Subsection 53-5-711(2)(b).

(2) When reviewing an application for a LEOJ permit the bureau shall conduct the same background investigation as if the individual were seeking a permit.

(3)(a) If the bureau finds that the applicant meets the requirements found in Subsection 53-5-711(2), the bureau shall issue a LEOJ permit to the applicant.

(b) The LEOJ permit shall be mailed to the applicant at the address listed on the application.

(4)(a) If the bureau finds that the applicant does not meet the requirements found in Subsection 53-5-711(2), the bureau shall mail a denial letter to the applicant, return receipt requested.

(b) The denial letter shall state the reasons for denial and indicate that the applicant has a right to request a review hearing before the board by filing a petition for review within 60 days as provided in Subsection [53-5-704(15)]53-5-704(16).

 

R722-300-10. Suspension or Revocation of a Permit to Carry a Concealed Firearm, Concealed Firearms Instructor Certification, or a LEOJ Permit.

(1) A permit may be suspended or revoked for any of the following reasons:

(a) the bureau determines that the permit holder does not meet the requirements found in Subsection 53-5-704(2);

(b) the bureau determines that the permit holder has committed a violation under Subsection 53-5-704(3); or

(c) the permit holder knowingly and willfully provided false information on an application for a permit, or a renewal of a permit.

(2) An instructor certification may be suspended or revoked for any of the following reasons:

(a) the bureau determines that the instructor has become ineligible to possess a firearm under Section 76-10-506 or federal law; or

(b) the instructor knowingly and willfully provided false information to the bureau.

(3) A LEOJ permit may be suspended or revoked for any of the following reasons:

(a) the bureau determines that a LEOJ permit holder is no longer employed as a law enforcement official or judge; or

(b) a LEOJ permit holder fails to provide proof of annual requalification by November 30 of each year as required by Section 53-5-711.

(4)(a) If the bureau suspends or revokes a permit, an instructor certification, or a LEOJ permit, the bureau shall mail a notice of agency action to the permit holder, instructor, or LEOJ permit holder, return receipt requested,

(b) The notice of agency action shall state the reasons for suspension or revocation and indicate that the permit holder, instructor, LEOJ permit holder has a right to request a review hearing before the board by filing a petition for review within 60 days as provided in Section [53-5-704(15)]53-5-704(16).

 

KEY: concealed firearm permit, concealed firearm permit instructor

Date of Enactment or Last Substantive Amendment: May 10, 2011

Authorizing, and Implemented or Interpreted Law: 53-5-701 through 53-5-711

 

---