Digital License Pilot Program – Proposed Rules

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DIGITAL LICENSE AND TAGGING RULES

ISSUANCE AND POSSESSION RULES

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §53.2 — 53.4, concerning Fees, and §53.60, concerning Stamps. The amendments would function, in conjunction with proposed amendments to §§57.981, 65.7, 65.8. 65.10, 65.42, and 65.64 published elsewhere in this issue of the Texas Register, to implement digital versions of the super combination hunting and “all water” fishing license package, a virtual license that does not utilize physical tags, and provide for the digital issuance of tags to holders of a lifetime super combination hunting and “all water” fishing license package.

        The 87th Texas Legislature enacted House Bill (H.B.) 3081, which authorized the commission to develop and implement a program for the issuance of digital tags for animals, including birds, to holders of hunting licenses authorizing the taking of those animals. In light of the passage of H.B. 3081, the department has determined that it is appropriate to initiate a pilot program to determine the public receptivity to and logistical feasibility of the concept of digital licenses and tags for hunting and fishing. The department currently offers a wide variety of physical hunting and fishing licenses; however, those licenses are issued via a computerized point-of-sale system operated by an outside vendor and the majority of license sales are consummated at retail locations where licenses are sold. Thus, there are many factors for the department to consider and significant potential for unforeseen circumstances to present themselves. Therefore, rather than offering digital versions of every type of hunting and fishing license all at once, the department has determined that it is prudent to begin with a pilot program to provide a real-world test of the parameters and customer experiences to be considered in any enlargement of the program. The super combination hunting and “all water” fishing license package is a suitable candidate for the pilot program.

        The proposed amendment to §53.2, concerning License Issuance Procedures, Fees, Possession, and Exemption Rules, would prescribe the requirements for providing proof of licensure for persons who purchase a digital license. Because the digital license is not a physical thing, the department has determined that it is necessary to prescribe how a person who has purchased a digital license may prove to law enforcement personnel that the person is legally engaging in hunting or fishing activities authorized under a digital license. The proposed amendment also makes clarifying changes to prevent conflicts between components of current rules applicable to physical licenses with provisions governing digital licenses and clarifies that license fees are not affected by the rulemaking. Finally, the proposed amendment would allow the holder of a lifetime resident super combination hunting and “all water” fishing package to select, beginning the year following the year of purchase and each year thereafter, whether to receive digital or physical tags. The proposed provision would provide that such a selection is final and could not be altered for the rest of the license year, which is necessary to prevent misunderstandings and confusion with respect to enforcement and compliance.

        The proposed amendment to §53.3, concerning Combination Hunting and Fishing License Packages,         would provide for the issuance of a digital version of the resident super combination hunting and "all water" fishing package, a digital version of the resident senior super combination hunting and "all water" fishing package, and digital tags for the lifetime resident super combination hunting and "all water" fishing package.

        The proposed amendment to §53.4, concerning Lifetime Licenses, would alter that section to provide for the optional issuance of digital tags.

        The proposed amendment to §53.60, concerning Stamps, would create exceptions to the current rules regarding possession of required stamps necessary to accommodate the creation of digital licenses.

       

2. Fiscal Note.

        Robin Riechers, Coastal Fisheries Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be minimal fiscal implications to the department, if any, and those fiscal implications will be positive.

        There will be no implications for other units of state or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

        Mr. Riechers also has determined that for each of the first five years that the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the provision of a new type of license for public enjoyment.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impacts to small businesses, micro-businesses, or rural communities. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact“ to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed amendments will not result in direct adverse impacts on small businesses, micro-businesses, or rural communities because the proposed rules regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest public wildlife resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

(2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) create a new regulation (governing digital licenses and tagging);

                 (6) not repeal, expand, or limit a regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Robin Riechers at (512) 389-4636, e-mail: robin.riechers@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5.  Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, §42.010, which requires the commission to prescribe the form and issuance of hunting licenses authorized under Parks and Wildlife Code, Chapter 42; §42.0101, which authorizes the commission to promulgate rules for the issuance of digital tags for animals, including birds, to holders of hunting licenses authorizing the taking of those animals, including rules allowing a person using a digital tag to create a digital record at the time of the taking of an animal that includes information required by the department as soon as possible after the taking of the animal and requiring a person using a digital tag to retain in the person’s possession documentation of a required digital record at all times before the carcass is finally processed; §42.0177, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, and final processing requirements of Chapter 42;  §42.006, which authorizes the commission to prescribe requirements relating to possessing a license issued under Chapter 42 by rule; §46.0085, which authorizes the department to issue tags for finfish species allowed by law to be taken during each year or season from coastal waters of the state to holders of licenses authorizing the taking of finfish species; §46.0086, which authorizes the commission to prescribe tagging requirements for the take of finfish; §50.004, which requires the department to issue and prescribe the form and manner of issuance for combination hunting and fishing licenses, including identification and compliance requirements; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

        The proposed amendment affects Parks and Wildlife Code, Chapters 42, 46, 50, and 61.

6. Rule Text.

        §53.2. License Issuance Procedures, Fees, Possession, and Exemption Rules.

                 (a) Hunting license possession.

                         (1) Except as provided in[by subsection (g) of] this section, no person may hunt [turkey] in this state without having a valid physical hunting license in immediate possession.

                         (2) A person may hunt [species other than turkey] in this state without having a valid physical hunting license in immediate possession if that person has acquired a license  electronically [(including by telephone)] and has either:

                                  (A) a receipt, notification, or application data from the department on a smart phone, computer, tablet, or similar device indicating acquisition of a digital license described in §53.3(a)(12) of this title (relating to Super Combination Hunting and Fishing License Packages) or §53.4(a)(1) of this title (relating to Lifetime Licenses); or

                                  (B) a valid confirmation number in [his] possession while awaiting fulfilment of the physical license. Confirmation numbers shall only be valid for 20 days from date of purchase.

                         (3) Except as provided in [by subsection (g) of] this section, a person may hunt deer in this state without having a valid physical hunting license in immediate possession only if that person:

                                  (A) has acquired a license electronically [(including by telephone)] and has a valid confirmation number in [his] possession while awaiting fulfilment of the physical license; and

                                  (B) (No change.)

                         (4) (No change.)

                 (b) Fishing license possession.

                         (1) A person may fish in this state without having a valid physical fishing license in immediate possession if that person:

                                  (A) (No change.)

                                  (B) has acquired a license electronically [(including by telephone)] and has either:

                                          (i) a receipt, notification, or application data from the department on a smart phone, computer, tablet, or similar device indicating acquisition of a digital license described in §53.3(a)(12) of this title (relating to Super Combination Hunting and Fishing License Packages) or §53.4(a)(1) of this title (relating to Lifetime Licenses); or

                                          (ii) a valid confirmation number in possession while awaiting fulfilment of the physical license. Confirmation numbers shall only be valid for 20 days from date of purchase.

                         (2) No person may catch and retain a red drum over 28 inches in length in the coastal waters of this state without having a valid fishing license, saltwater sportfishing stamp (unless exempt), and valid red drum tag in immediate possession, unless the person has purchased a valid digital license described in §53.3(a)(12) of this title (relating to Super Combination Hunting and Fishing License Packages) or a valid license with digital tags under §53.4(a)(1) of this title (relating to Lifetime Licenses).

                 (c) Issuance of licenses and stamp endorsements electronically (on-line or by telephone).

                         (1) – (2) (No change.)

                         (3) The fees established by this subsection apply to the electronic acquisition of a digital license identified in §53.3(a)(12) of this title (relating to Combination Hunting and Fishing Packages) or §53.4(a)(1) of this title (relating to Lifetime Licenses).

                 (d) – (g) (No change.)

        §53.3. Combination Hunting and Fishing License Packages.

                 (a) Combination hunting and fishing license packages may be priced at an amount less than the sum of the license and stamp prices of the individual licenses and stamps included in the package.

                         (1) – (11) (No change.)

                         (12) Digital super combination hunting and “all water” fishing license package. The licenses listed in paragraphs (7) and (8) of this subsection are available in a digital version that does not include the license log or the physical license tags found on the physical license.

                                  (A) The fee for a digital license identified in this paragraph shall be the same as the fee specified for that license in paragraphs (7) and (8) of this section.

                                  (B) A person who acquires a digital license is ineligible to acquire any other form of recreational hunting or fishing license in the same license year.

                                  (C) The digital licenses identified in this paragraph are available only through the department’s website at www.tpwd.texas.gov.

                                  (D) The provisions of §65.8 of this title (relating to Alternative Licensing System) do not apply to a digital license.

                         (13) [(12)] Replacement combination or replacement super combination packages — $10 except for a replacement disabled veteran super combination hunting and "all water" fishing package or a Texas resident active duty military super combination hunting and "all water" fishing package, which shall be replaced at no charge.

                 (b) (No change.)

        §53.4. Lifetime Licenses.

                 (a) Fees.

                         (1) lifetime resident super combination hunting and "all water" fishing package — $1,800;

                                  (A) includes the digital tag option that does not require the license log or the physical license tags found on the physical license. The digital tag option is available beginning the year after the year of purchase of the license (and each year thereafter); and

                                  (B) the provisions of §53.3(12)(B) – (D) of this title (relating to Combination Hunting and Fishing License Packages) apply.

                         (2) – (5) (No change.)

                 (b) – (c) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The amendments are proposed under the authority of Parks and Wildlife Code, §42.010, which requires the commission to prescribe the form and issuance of hunting licenses authorized under Parks and Wildlife Code, Chapter 42; §42.0101, which authorizes the commission to promulgate rules for the issuance of digital tags for animals, including birds, to holders of hunting licenses authorizing the taking of those animals, including rules allowing a person using a digital tag to create a digital record at the time of the taking of an animal that includes information required by the department as soon as possible after the taking of the animal and requiring a person using a digital tag to retain in the person’s possession documentation of a required digital record at all times before the carcass is finally processed; §42.0177, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, and final processing requirements of Chapter 42;  §42.006, which authorizes the commission to prescribe requirements relating to possessing a license issued under Chapter 42 by rule; §46.0085, which authorizes the department to issue tags for finfish species allowed by law to be taken during each year or season from coastal waters of the state to holders of licenses authorizing the taking of finfish species; §46.0086, which authorizes the commission to prescribe tagging requirements for the take of finfish; §50.004, which requires the department to issue and prescribe the form and manner of issuance for combination hunting and fishing licenses, including identification and compliance requirements; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

        The proposed amendment affects Parks and Wildlife Code, Chapters 42, 46, 50, and 61.

        §53.60. Stamps.

                 (a) Stamp Form, Design and Manner of Issuance.

                         (1) Except as provided in paragraph (2) of this subsection, a [A] required stamp shall be issued as an endorsement noted on the license issued through the department’s automated system.

                         (2) A digital license issued under the provisions of §53.3(a)(12) of this title (relating to Combination Hunting and Fishing License Packages) includes all required endorsements.

                 (b) Stamp Purchase Identification and Possession Requirements.

                         (1) A person may hunt without a required state hunting stamp in immediate possession if the person:

                                  (A) possesses a valid digital license issued under the provisions of §53.3(a)(12) of this title (relating to Combination Hunting and Fishing License Packages) or a valid license with digital tags under §53.4(a)(1) of this title (relating to Lifetime Licenses); or

                                  (B) [the person] has acquired a stamp electronically [(including by telephone)] and has a valid authorization number in possession while awaiting fulfilment of the physical tag. Authorization numbers shall only be valid for 20 days from purchase date.

                         (2) A person may fish without a required fishing stamp in immediate possession if the person:

                                  (A) possesses a valid digital license issued under the provisions of §53.3(a)(12) of this title (relating to Combination Hunting and Fishing License Packages) or a valid license with digital tags under §53.4(a)(1) of this title (relating to Lifetime Licenses); or

                                  (B) [the person] has acquired a stamp electronically [(including by telephone)] and has a valid authorization number in possession while awaiting fulfilment of the physical tag. Authorization numbers shall only be valid for 20 days from purchase date.

                 (c) – (e) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

DIGITAL LICENSE AND TAGGING RULES

RED DRUM TAGGING RULES

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §57.981, concerning Bag, Possession, and Length Limits. The amendment would function, in conjunction with proposed amendments to §§53.2 — 53.4, 53.60, 65.7, 65.8. 65.10, 65.42, and 65.64 published elsewhere in this issue of the Texas Register, to implement a digital version of the super combination hunting and “all water” fishing license package, a virtual license that does not utilize physical tags, and provide for the digital issuance of tags to holders of a lifetime super combination hunting and “all water” fishing license package.

        Under current rule, the super combination hunting and “all water” fishing license entitles a person to retain a red drum exceeding the maximum length limit only if the person has attached a properly executed red drum tag, exempt angler red drum tag, or bonus red drum tag to the harvested red drum. The 87th Texas Legislature enacted House Bill (H.B.) 3081, which authorized the commission to develop and implement a program for the issuance of digital tags for animals, including birds, to holders of hunting licenses authorizing the taking of those animals. In light of the passage of H.B. 3081, the department has determined that it is appropriate to initiate a pilot program to determine the public receptivity for and logistical feasibility of the concept of digital licenses for hunting and fishing. The department currently offers a wide variety of physical hunting and fishing licenses; however, those licenses are issued via a computerized point-of-sale system operated by an outside vendor and the majority of license sales are consummated at retail locations where licenses are sold. Thus, there are many factors for the department to consider and significant potential for unforeseen circumstances to present themselves. Therefore, rather than offering digital versions of every hunting and fishing license all at once, the department has determined that it is prudent to begin with a pilot program to provide a real-world test of the parameters and customer experiences to be considered in any enlargement of the program. The super combination hunting and fishing license is a suitable candidate for the pilot program.

        The proposed amendment would prescribe tagging requirements for holders of digital licenses with respect to oversized red drum. As noted earlier, current rule requires a person who retains an oversized red drum to execute and attach a physical tag from the person’s fishing license. A person who retains an oversized red drum under a license that does not contain tags cannot comply with current rule; therefore, the proposed amendment would create an exception to the current requirements for physical licenses and prescribe digital tagging provisions. The proposed amendment would require the holder of a digital license to immediately report the retention of an oversized red drum via an electronic application developed by the department for that purpose and receive a confirmation number. Additionally, the proposed rule would prescribe the requirements for situations in which data connectivity prevents the required harvest report from being uploaded (i.e., preventing a confirmation number from being obtained). Specifically, a person who retains an oversized red drum and reports via the electronic application as required but cannot receive a confirmation number because of data connectivity issue would be required to upload the harvest report immediately upon reaching data connectivity. Finally, the proposed amendment would require persons in possession of an oversized red drum under a digital license to be in possession of an appropriate electronic device. It is or should be intuitively obvious that compliance with the requirement for digital tagging immediately upon harvest cannot take place in the absence of a functioning smartphone, computer, or other device capable of reporting; thus, the proposed rule would require that the capability for compliance be present. The department acknowledges that situations may arise in which electronic devices are damaged, lost, or lose power and notes that Parks and Wildlife Code, §46.015, provides for the dismissal of charges for persons charged with fishing license violations if the person is able to produce for the court or the prosecuting attorney the proper fishing license issued to the person and valid at the time of the offense. The department notes that persons who purchase a lifetime super combination hunting and “all water” fishing license and choose to have the department fulfil a physical red drum tag would be required to follow current rules regarding tagging.

2. Fiscal Note.

        Robin Riechers, Coastal Fisheries Division Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be minimal fiscal implications to the department, if any, and those fiscal implications will be positive.

        There will be no implications for other units of state or local governments as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

        Mr. Riechers also has determined that for each of the first five years that the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be the provision of a new type of license for public use.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impacts to small businesses, micro-businesses, or rural communities. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact“ to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed amendment will not result in direct adverse impacts on small businesses, micro-businesses, or rural communities because the proposed rule regulates various aspects of recreational license privileges that allow individual persons to pursue and harvest public fisheries resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

(2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) create a new regulation (governing digital licenses and tagging);

                 (6) not repeal, expand, or limit a regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Robin Riechers at (512) 389-4636, e-mail: robin.riechers@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5.  Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, §46.0085, which authorizes the department to issue tags for finfish species allowed by law to be taken during each year or season from coastal waters of the state to holders of licenses authorizing the taking of finfish species; §46.0086, which authorizes the commission to prescribe tagging requirements for the take of finfish; §50.004, which requires the department to issue and prescribe the form and manner of issuance for combination hunting and fishing licenses, including identification and compliance requirements;  and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

        The proposed amendment affects Parks and Wildlife Code, Chapters 46, 50, and 61.

6. Rule Text.

        §57.981. Bag, Possession, and Length Limits.

                 (a) – (b) (No change.)

                 (c) There are no bag, possession, or length limits on game or non-game fish, except as provided in this subchapter.

                         (1) – (4) (No change.)

                         (5) Except as provided in subsection (d) of this section, the statewide daily bag and length limits shall be as follows.

                                  (G) Drum, red.

                                          (i) (No change.)

                                          (iv) During a license year, one red drum exceeding [over] the [stated] maximum length limit established by this subparagraph may be retained when affixed with a properly executed Red Drum Tag, a properly executed Exempt Angler Red Drum Tag or with a properly executed Duplicate Exempt Red Drum Tag and one red drum over the stated maximum length limit may be retained when affixed with a properly executed Bonus Red Drum Tag. Any fish retained under authority of a Red Drum Tag, an Exempt Angler Red Drum Tag, a Duplicate Exempt Red Drum Tag, or a Bonus Red Drum Tag may be retained in addition to the daily bag and possession limit as provided[stated] in this section.

                                          (v) A person who lawfully takes a red drum under a digital license issued under the provisions of §53.3(a)(12) this title (relating to Super Combination Hunting and Fishing License Packages) or under a lifetime license with the digital tagging option provided by §53.4(a)(1) of this title (relating to Lifetime Licenses) that exceeds the maximum length limit established by this subparagraph is exempt from any requirement of Parks and Wildlife Code or this subchapter regarding the use of license tags for that species; however, that person shall immediately upon take ensure that a harvest report is created and submitted via a mobile or web application provided by the department for that purpose. If the absence of data connectivity prevents the receipt of a confirmation number from the department following the report required by this subparagraph, the person who took the red drum is responsible for ensuring that the report required by this subparagraph is uploaded to the department immediately upon the availability of network connectivity.

                                          (vi) It is an offense for any person to possess a red drum exceeding the maximum length established by this subparagraph under a digital license or digital tagging option without being in immediate physical possession of an electronic device that is:

                                                   (I) loaded with the mobile or web application designated by the department for harvest reporting under this subsection; and

                                                  (II) capable of uploading the harvest report required by this subsection.

                                          (vii) A person who is fishing under a license identified in §53.4(a)(1) of this title and selected the fulfilment of physical tags must comply with the tagging requirements of this chapter that are applicable to the tagging of red drum under a license that is not a digital license.  

                                  (H) – (X) (No change.)

                 (d) (No change)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

DIGITAL LICENSE AND TAGGING RULES

TAGGING OF DEER AND TURKEY

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§65.7, 65.8. 65.10, 65.42, and 65.64, concerning the Statewide Hunting Proclamation. The amendments would function, in conjunction with proposed amendments to §§53.2 — 53.4, 53.60, and 57.981 published elsewhere in this issue of the Texas Register, to implement a digital version of the super combination hunting and “all water” fishing license package, a virtual license that does not utilize physical tags, and provide for the digital issuance of tags to holders of a lifetime super combination hunting and “all water” fishing license package.

        Under Parks and Wildlife Code, Chapter 42, no person may possess a deer or turkey unless a properly executed tag from the person’s hunting license has been attached to the deer or turkey, except as provided by commission rule. The 87th Texas Legislature enacted House Bill (H.B.) 3081, which authorized the commission to develop and implement a program for the issuance of digital tags for animals, including birds, to holders of hunting licenses authorizing the taking of those animals. In light of the passage of H.B. 3081, the department has determined that it is appropriate to initiate a pilot program to determine the public receptivity to and logistical feasibility of the concept of digital licenses and tags for hunting and fishing. The department currently offers a wide variety of physical hunting and fishing licenses; however, those licenses are issued via a computerized point-of-sale system operated by an outside vendor and the majority of license sales are consummated at retail locations where licenses are sold. Thus, there are many factors for the department to consider and significant potential for unforeseen circumstances to present themselves. Therefore, rather than offering digital versions of every hunting and fishing license all at once, the department has determined that it is prudent to begin with a pilot program to provide a real-world test of the parameters and customer experiences to be considered in any enlargement of the program. The super combination hunting and “all water” fishing license package is a suitable candidate for the pilot program.

        The proposed amendment to §65.7, concerning Harvest Log, would create an exception for the holders of a digital license or lifetime license with digital tags to provisions requiring the completion of the license log that is contained on the physical hunting license. Because the digital license and digital tags would not be physical things and harvest reporting via an electronic application would be required, it is unnecessary for the department to require utilization of a license log to capture that information.

        The proposed amendment to §65.8, concerning Alternative Licensing System, would create an exception to the provisions of that section for holders of a digital license or lifetime license with digital tags. The section was adopted in 2007 to address the possibilities presented by the hypothetical unavailability or failure of the department’s computerized point-of-sale system at critical seasonal times when almost all hunting and fishing licenses are sold. Under such a scenario, the department would issue licenses online, but without tags, and the various provisions governing tagging would be waived. Since digital licenses would be issued without tags and lifetime licensees would have the option of digital tags, the provisions of the section waiving requirements for tagless licenses would apply unless an exception is created.

        The proposed amendment to §65.10, concerning Possession of Wildlife Resources, would prescribe tagging requirements for holders of digital licenses and lifetime licenses with digital tags. As noted earlier, current law requires a person who kills a deer or turkey to execute and attach a physical tag from the person’s hunting license, unless the commission provides otherwise by rule. A person who kills a deer or turkey under a license that does not contain tags cannot comply with current rule; therefore, the proposed amendment would create an exception to the current requirements for physical licenses and prescribe digital tagging provisions. The proposed amendment would require the holder of a digital license or lifetime license with digital tags to immediately report the harvest of a deer or turkey via an electronic application developed by the department for that purpose and receive a confirmation number, which would then be required to be reproduced on some sort of durable media and attached to the carcass of the deer or turkey, where it would be required to remain until reaching a final destination. The purpose of tagging is to allow department law enforcement personnel to quickly and easily determine that deer or turkey have been legally harvested. Unless there is some sort of physical documentation present on a carcass, particularly when the carcass is unattended or the person who harvested the deer or turkey is not present, that process can become problematic, time consuming, and inconvenient. By requiring the confirmation number of the harvest report to be attached to a carcass, the rule would allow game wardens to efficiently check harvested deer or turkey for tags. In instances in which a game warden encounters deer or turkey harvested under a digital license or tag, the warden would either check the smartphone, computer, tablet, or other device to verify that the required harvest report has been submitted, or query the license system to verify that the hunter, the deer or turkey, and the location of harvest have been reported. Additionally, the proposed rule would prescribe the requirements for situations in which data connectivity prevents the required harvest report from being uploaded (i.e., preventing a confirmation number from being obtained). Specifically, a person who harvests a deer or turkey and reports via the electronic application as required but cannot receive a confirmation number because of data connectivity issue would be required to complete a hunter’s document and attach it to the carcass of the deer or turkey until reaching data connectivity and obtaining a confirmation number. The hunter’s document would contain the same information required to be reported via the electronic application, and could be replaced with documentation of the confirmation number once the confirmation number is received. Finally, the proposed amendment would require persons hunting deer or turkey under a digital license or tag to be in possession of an appropriate electronic device while hunting. It is or should be intuitively obvious that compliance with the requirement for digital tagging immediately upon harvest cannot take place in the absence of a functioning smartphone, computer, or other device capable of reporting; thus, the proposed rule would require that the capability for compliance be present. The department acknowledges that situations may arise in which electronic devices are damaged, lost, or lose power and notes that Parks and Wildlife Code, §42.004, provides for the dismissal of charges for persons charged with hunting license violations if the person is able to produce for the court or the prosecuting attorney the proper hunting license issued to the person and valid at the time of the offense. The department notes that persons who purchase a digital lifetime super combination hunting and “all water” fishing license and choose to have the department fulfil physical deer and turkey tags would be required to follow current rules regarding tagging.

        The proposed amendment to §65.42, concerning Deer, would remove a potential conflict with current rule for persons who harvest antlerless deer under a digital license or tag in specific counties in the Oak Prairies region. Current rule requires antlerless harvest in those counties to be electronically reported to the department within 24 hours, which is necessary because of department research into antlerless deer harvest in those counties. The proposed amendment would have the effect of requiring immediate harvest reporting of antlerless deer in the affected counties if the harvest is under a digital license or tag.

        The proposed amendment to §65.64, concerning Turkey, would accomplish the same objectives as the proposed amendment to §65.42 and for the same reasons, only with respect to turkey rather than deer.

2. Fiscal Note.

        Robin Riechers, Coastal Fisheries Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be minimal fiscal implications to the department, if any, and those fiscal implications will be positive.

        There will be no implications for other units of state or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

        Mr. Riechers also has determined that for each of the first five years that the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the provision of a new type of license for public use.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impacts to small businesses, micro-businesses, or rural communities. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact“ to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed amendments will not result in direct adverse impacts on small businesses, micro-businesses, or rural communities because the proposed rules regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest public wildlife resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

(2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) create a new regulation (governing digital licenses and tagging);

                 (6) not repeal, expand, or limit a regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Robin Riechers at (512) 389-4636, e-mail: robin.riechers@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5.  Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, §42.010, which, which requires the commission to prescribe the form and issuance of hunting licenses authorized under Parks and Wildlife Code, Chapter 42; §42.0101, which authorizes the commission to promulgate rules for the issuance of digital tags for animals, including birds, to holders of hunting licenses authorizing the taking of those animals, including rules allowing a person using a digital tag to create a digital record at the time of the taking of an animal that includes information required by the department as soon as possible after the taking of the animal and requiring a person using a digital tag to retain in the person’s possession documentation of a required digital record at all times before the carcass is finally processed; §42.0177, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, and final processing requirements of Chapter 42;  §42.006, which authorizes the commission to prescribe requirements relating to possessing a license issued under Chapter 42 by rule; §50.004, which requires the department to issue and prescribe the form and manner of issuance for combination hunting and fishing licenses, including identification and compliance requirements;  and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

        The proposed amendment affects Parks and Wildlife Code, Chapters 42, 50, and 61.

6. Rule Text.

        §65.7. Harvest Log.

                 (a) The provisions of this subsection apply only to a person in possession of a license purchased through an automated point-of-sale system and do not apply to a digital license issued by the department pursuant to §53.3(a)(12) of this title (relating to Super Combination Hunting and Fishing License Packages) or §53.4(a)(1) of this title (relating to Lifetime Licenses).

                         (1) – (2) (No change.)

                 (b) (No change.)

        §65.8. Alternative Licensing System.

                 (a) – (c) (No change.)

                 (d) This section does not apply to the digital licenses identified in §53.3(a)(12) of this title (relating to Super Combination Hunting and Fishing License Packages) or §53.4(a)(1) of this title (relating to Lifetime Licenses).

        §65.10. Possession of Wildlife Resources.

                 (a) (No change.)

                 (b) Under authority of Parks and Wildlife Code, §42.0177, the tagging requirements of Parks and Wildlife Code, §42.018, are modified as follows.

                         (1) – (2) (No change.)

                         (3) Except as provided in paragraph (4) of this subsection, the tagging requirements for deer and turkey taken under a digital license issued under the provisions of §53.3(a)(12) of this title (relating to Super Combination Hunting and Fishing License Packages) or under the digital tagging option of §53.4(a)(1) of this title (relating to Lifetime Licenses) are prescribed in subsection (e) of this section.

                         (4) A person who has purchased a digital license identified in §53.4(a)(1) of this title and selected the fulfilment of physical tags must comply with the tagging requirements of Parks and Wildlife Code, Chapter 42, and this chapter that are applicable to the tagging of deer and turkey under a license that is not a digital license.  

                         (5)[(3)] The provisions of this subsection do not modify or eliminate any requirement of this subchapter or the Parks and Wildlife Code applicable to a carcass before it is at a final destination.

                 (c) – (d) (No change.)

                (e) A person who lawfully kills a deer or turkey under a digital license issued under the provisions of §53.3(a)(12) of this title (relating to Super Combination Hunting and Fishing License Packages) or the digital tagging option under §53.4(a)(1) of this title (relating to Lifetime Licenses) is exempt from any requirement of Parks and Wildlife Code or this subchapter regarding the use or possession of license tags for those species; however, that person shall ensure that immediately upon take a harvest report is created and submitted via a mobile or web application provided by the department for that purpose.

                         (1) Upon receipt of a confirmation number sent by the department in response to the harvest report required by this subsection, the person who took the deer or turkey is responsible for ensuring that the confirmation number is legibly reproduced on a reasonably durable media, which shall immediately be attached to the carcass of the deer or turkey. The confirmation number shall remain attached to the carcass until the applicable requirements of subsection (b) of this section have been satisfied.  

                         (2) If the absence of network data connectivity prevents the receipt of a confirmation number from the department following the report required by this subsection, the person who took the deer or turkey is responsible for the preparation of a hunter’s document which shall immediately be attached to the carcass of the deer or turkey and remain attached to the carcass until the harvest report required by this subsection is uploaded to the department. The hunter’s document shall be made of reasonably durable media and shall contain:

                                  (A) the first and last name of the person who took the deer or turkey;                                                        (B) the customer number of the license of the person who took the deer or turkey; and

                                  (C) the date and time the deer or turkey was taken.

                                  (D) A person who documents the take of a deer or turkey under the provisions of this paragraph shall ensure that the harvest report required by this subsection is uploaded to the department immediately upon the availability of network connectivity, at which time the hunter’s document may be replaced with documentation meeting the requirements of paragraph (1) of this subsection, which shall remain attached to the carcass of the deer or turkey until the applicable requirements of subsection (b) of this section have been satisfied.

                         (3) It is an offense for any person to hunt deer or turkey under a digital license or digital tagging option without being in immediate physical possession of an electronic device that is:

                                  (A) loaded with the mobile or web application designated by the department for harvest reporting under this subsection; and

                                  (B) capable of uploading the harvest report required by this subsection.    

                 (f)[(e)] Proof of sex for deer and antelope must remain with the carcass until tagging requirements cease.

                         (1) – (2) (No change.)

                 (g)[(f)] During a season in which the bag composition for turkey is restricted to gobblers only or gobblers and bearded hens, proof of sex must remain with a harvested turkey (attached or detached from the bird) until it reaches either the possessor’s permanent residence or a cold storage/processing facility and is finally processed. Proof of sex for turkey is as follows:

                         (1) – (2) (No change.)

                 (h)[(g)] Proof of sex for pheasant consists of: one leg, including the spur, attached to the bird or the entire plumage attached to the bird.

                 (i))[(h)] No additional proof of sex is required for a deer that is lawfully tagged in accordance with:

                         (1) – (3) (No change.)

                 (j)[(i)] In lieu of proof of sex, the person who killed the wildlife resource may:

                         (1) – (2) (No change.)

                 (k)[(j)] A person may give, leave, receive, or possess any species of legally taken wildlife resource, or a part of the resource, that is required to have a tag or permit attached or is protected by a bag or possession limit, if the wildlife resource is accompanied by a wildlife resource document from the person who killed or caught the wildlife resource. A wildlife resource may be possessed without a WRD by the person who took the wildlife resource, provided the person is in compliance with all other applicable provisions of this subchapter and the Parks and Wildlife Code.

                         (1) – (5) (No change.)

                 (l)[(k)] It is a defense to prosecution if the person receiving the wildlife resource does not exceed any possession limit or possesses a wildlife resource or a part of a wildlife resource that is required to be tagged if the wildlife resource or part of the wildlife resource is tagged.

                 (m)[(l)] The identification requirements for desert bighorn sheep skulls are as follows.

                         (1) – (4) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The amendments are proposed under the authority of Parks and Wildlife Code, §42.010, which, which requires the commission to prescribe the form and issuance of hunting licenses authorized under Parks and Wildlife Code, Chapter 42; §42.0101, which authorizes the commission to promulgate rules for the issuance of digital tags for animals, including birds, to holders of hunting licenses authorizing the taking of those animals, including rules allowing a person using a digital tag to create a digital record at the time of the taking of an animal that includes information required by the department as soon as possible after the taking of the animal and requiring a person using a digital tag to retain in the person’s possession documentation of a required digital record at all times before the carcass is finally processed; §42.0177, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, and final processing requirements of Chapter 42;  §42.006, which authorizes the commission to prescribe requirements relating to possessing a license issued under Chapter 42 by rule; §50.004, which requires the department to issue and prescribe the form and manner of issuance for combination hunting and fishing licenses, including identification and compliance requirements;  and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

        The proposed amendments affect Parks and Wildlife Code, Chapters 42, 50, and 61.

        §65.42. Deer.

                 (a) General.

                         (1) – (4) (No change.)

                         (5) In the counties or portions of counties listed in subsection (b)(2)(H) of this section, antlerless deer harvested on properties not subject to the provisions of §65.29 of this title (relating to Managed Lands Deer (MLD) Programs) must be reported via the department’s internet or mobile application within 24 hours of the time of kill, including antlerless deer harvested during the special seasons established by subsection (b)(5) — (7) of this section. This paragraph does not apply to antlerless deer harvested under a digital license issued by the department pursuant to §53.2(a)(12) of this title (relating to Super Combination Hunting and Fishing Packages) or a valid license with digital tags under §53.4(a)(12) of this title (relating to Lifetime Licenses) of this title, which must be reported as required under §65.11 of this title (relating to Possession of Wildlife Resources).

                 (b) — (c) (No change.)

        §65.64. Turkey.

                (a) (No change.)

                 (b) Rio Grande Turkey. The open seasons and bag limits for Rio Grande turkey shall be as follows.

                         (1) – (2) (No change.)

                         (3) Spring season and bag limits.

                                  (A) — (B) (No change.)

                                  (C) In Bastrop, Caldwell, Colorado, Fayette, Jackson, Lavaca, Lee, Matagorda, Milam, and Wharton counties, there is a spring general open season.

                                          (i) – (ii) (No change.)

                                          (iii) Except as provided by §65.10 of this title (relating to Possession of Wildlife Resources) for turkeys harvested under a digital license issued by the department pursuant to §53.3(a)(12) of this title (relating to Super Combination Hunting and Fishing License Packages) or a valid license with digital tags under §53.4(a)(1) of this title (relating to Lifetime Licenses), all [All] turkeys harvested during the open season established under this subparagraph must be reported within 24 hours of the time of kill via an internet or mobile application designated by the department for that purpose.

                                  (4) (No change.)

                 (c) Eastern turkey. The open seasons and bag limits for Eastern turkey shall be as follows. In Bowie, Cass, Fannin, Grayson, Jasper (other than the Angelina National Forest), Lamar, Marion, Nacogdoches, Newton, Polk, Red River, and Sabine counties, there is a spring season during which both Rio Grande and Eastern turkey may be lawfully hunted.

                         (1) – (2) (No charge.)

                         (3) In the counties listed in this subsection:

                                  (A) – (B) (No change.)

                                  (C) except as provided by §65.10 of this title (relating to Possession of Wildlife Resources) for turkeys harvested under a digital license issued pursuant to §53.3 of this title (relating to Super Combination Hunting and Fishing License Packages) or a valid license with digital tags under §53.4(a)(1) of this title (relating to Lifetime Licenses), all turkeys harvested during the open season must be registered via the department’s internet or mobile application within 24 hours of the time of kill. The department will publish the internet address and information on obtaining the mobile application in generally accessible locations, including the department internet web site (www.tpwd.texas.gov). Harvested turkeys may be field dressed but must otherwise remain intact.

                 (d) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

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