Proposed Amendments to Digital Licensing, Stamp, and Tag Rules

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DIGITAL LICENSE, STAMP ENDORSEMENT, TAG, AND PERMIT RULES

ISSUANCE AND POSSESSION RULES

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§53.1-53.6, concerning Fees, §53.18, concerning License Issuance Procedures, Fees, Possession, and Exemption Rules – Provisions for Digital Products, and §53.60, concerning Stamps. The amendments would, in conjunction with other proposed rules affecting 31 TAC Chapter 57, Subchapter N, concerning the Statewide Recreational and Commercial Fishing Proclamations, and Chapter 65, Subchapter A, concerning the Statewide Hunting Proclamation, published elsewhere in this issue of the Texas Register, expand the current provisions regarding the issuance and use of digital products to include and apply to all recreational hunting, fishing, and combination hunting and fishing licenses and stamp endorsements currently issued by the department directly to hunters and anglers, as well as the Annual Public Hunting Permit, Limited Use Permit, Harvest Information Program certification, Hunter Education Deferral Option, federal sandhill crane permit, and controlled exotic snake permit.

        The 87th Texas Legislature (2021) 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. The department accordingly initiated a pilot program in 2022 to determine the public receptivity to and logistical feasibility of the concept of digital licenses, stamp endorsements, and tags for hunting and fishing, which resulted in the creation of digital versions of the super combination hunting and “all water” fishing license and the lifetime resident super combination hunting and "all water" fishing package (47 TexReg 88). In 2022, after an analysis of customer purchasing behavior with respect to digital licenses and products, the department determined that it was appropriate to offer a digital version of the youth hunting license, the lifetime resident hunting license, and the lifetime fishing license for the license year beginning September 1, 2023, as well as the exempt angler red drum tag, which allows persons who are exempt from fishing license and stamp endorsement requirements to harvest red drum. The department is now confident, based on these pilot programs, that all recreational hunting and fishing licenses, stamp endorsements, tags, and selected permits that are sold directly to users can be made available to the public as digital products, which is the purpose of this proposed rulemaking.

        The proposed amendments to §§53.1, concerning Applicability, would add definitions for “digital product,” “electronic acquisition — electronically,” “physical product,” and “virtual documentation” in order to provide precise and unambiguous meanings for those terms as they are used in the proposed rules.

        The proposed amendments to §§53.2, concerning License Issuance Procedures, Fees, Possession, and Exemption Rules, 53.3, concerning Combination Hunting and Fishing License Packages, 53.4, concerning Lifetime Licenses, §53.5, concerning Recreational Hunting Licenses, Stamps, and Tags, and 53.6, concerning Recreational Fishing Licenses, Stamps, and Tags, would make conforming changes necessary to comport with the proposed amendment to §53.18, concerning License Issuance Procedures, Fees, Possession, and Exemption Rules – Provisions for Digital Products, which would be retitled “Digital Products,” and become the controlling authority for all digital products offered by the department.

        The proposed amendment to §53.18, concerning License Issuing Procedures, Fees, Possession, and Exemption Rules—Provisions for Digital Products, would retitle the section and make the provisions of the section applicable to all recreational hunting and fishing licenses, stamp endorsements, tags sold directly to the public, as well as the selected permits mentioned previously in this preamble. The effect of the proposed amendment would be to make digital versions of all recreational hunting and fishing licenses, stamp endorsements, tags, and select permits currently directly available to the public (in addition to the traditional versions of those products).

        The proposed amendment to §53.60, concerning Stamps, also would make conforming changes necessary to comport with the proposed amendment to §53.18.

2. Fiscal Note.

        Chris Cerny, Business Analyst, has determined that for each of the first five years that the rules as proposed are in effect, there will be minimal fiscal implications for 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. Cerny 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 additional licensing options for the convenience and enjoyment of the public.

        (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 rules 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) not create, repeal, or limit a regulation;

                 (6) expand a regulation (by making all recreational hunting and fishing licenses and certain permits available as digital license products);

                 (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 Chris Cerny at (512) 389-4594, e-mail: chris.cerny@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 department 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; §61.052, 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; and §61.054 which requires the commission to specify 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, 46, 50, and 61.

6. Rule Text.

        §53.1. Applicability; Definitions.

                 (a) Except for the fees established in Chapter 59 of this title (relating to Parks) and Chapter 69, Subchapter H, of this title (relating to Issuance of Marl, Sand, and Gravel Permits), the fees established by this chapter prevail over all other chapters in this title.

                 (b) The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise.

                         (1) Digital product (digital license, digital stamp endorsement, digital tag, digital permit) — A license, stamp endorsement, tag, or permit issued by the department that is not a physical license, physical stamp endorsement, physical tag, or physical permit but serves as virtual documentation of a person’s hunting and/or fishing privileges and compliance with the applicable license and permit requirements of the Parks and Wildlife Code and rules of the commission.

                         (2) Electronic acquisition (electronically) — Acquisition of a license, stamp endorsement, tag, or permit, issued in either digital or physical form, from the department by phone or online.

                         (3) Physical product (physical license, physical stamp endorsement, physical tag, or physical permit) — A tangible, material license, stamp endorsement, tag, or permit issued by the department that serves as tangible documentation of a person’s specific hunting and/or fishing privileges and compliance with the applicable license and permit requirements of the Parks and Wildlife Code and the rules of the commission.

                         (4) Virtual documentation — An electronic record obtained from and maintained by the department indicating the purchase, possession, or acquisition of a digital product.

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

                 (a) Hunting license [possession].

                         (1) (No change.)

                         (2) A person may hunt in this state without having a valid physical hunting license in immediate possession if that person has acquired a license electronically 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 an appropriate digital product identified in §53.18 of this title (relating to Digital Products[a digital license described in §53.3(a)(12) of this title (relating to Combination Hunting and Fishing License Packages) or §53.4(a)(1) of this title (relating to Lifetime Licenses)]; or

                                  (B) (No change.)

                         (3) – (4) (No change.)

                 (b) Fishing license; Tags[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 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 product identified in §53.18 of this title[license described in §53.3(a)(12) of this title or §53.4(a)(1) of this title]; or

                                          (ii) (No change.)

                         (2) No person may catch and retain a red drum or spotted seatrout exceeding the maximum length limit established in Chapter 57, Subchapter N, Division 2, of this title (relating to Statewide Recreational Fishing Proclamation[over 28 inches in length] in the coastal waters of this state without having a valid physical fishing license, saltwater sportfishing stamp (unless exempt), and valid appropriate (red drum or spotted seatrout) tag in immediate possession, unless the person has purchased a valid digital product identified in§53.18 of this title[license described in §53.3(a)(12) of this title or a valid license with digital tags under §53.4(a)(1) of this title].

                         [(3) No person may catch and retain a spotted seatrout 28 inches or greater in length in the coastal waters of this state without having a valid fishing license, saltwater sportfishing stamp (unless exempt), and valid Spotted Seatrout tag in immediate possession, unless the person has purchased a valid digital license described in §53.3(a)(12) of this title or a valid license with digital tags under §53.4(a)(1) of this title].

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

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

                         (3) The fees established by this subsection also apply to the electronic acquisition of a digital product[license] identified in §53.18 of this title[§53.3(a)(12) of this title or §53.4(a)(1)] of this title.

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

                 (h) A person who has purchased a valid physical hunting, fishing, or combination hunting and fishing license product but is not in physical possession of that physical license product[license] in any circumstance for which physical possession of the license product [the license] is required may use a wireless communications device (laptop, cellphone, smart phone, electronic tablet, phablet, or similar device) to satisfy applicable license possession requirements.

                                  (1) – (3) (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)] 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[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) – (c) (No change.)

                 [(d) The licenses listed in this section are available with a digital tag option that does not require the license log or the physical license tags found on the physical license.]

                         [(1) The digital tag option is available beginning the year after the year of purchase of the license (and each year thereafter); and]

                         [(2) the provisions of §53.3(a)(12)(B) — (D) of this title (relating to Combination Hunting and Fishing License Packages) apply.]

        §53.5. Recreational Hunting Licenses, Stamps, and Tags.

                 (a) Hunting Licenses:

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

                         (3) youth hunting — $7.

                                  [(A)] Valid for any person under 17 years of age on the date of license purchase.

                                  [(B) This license is available in a digital version that does not include the license log or the physical license tags found on the physical license.]

                         (4) – (9) (No change.)

                 (b) – (d) (No change)

        §53.6. Recreational Fishing Licenses, Stamps, and Tags.

                 (a) – (d) (No change.)

                 (e) Fishing tags:

                         (1) exempt angler red drum tag (provides a red drum tag for persons that are exempt by statute or rule from the purchase of a resident or non-resident fishing license of any type or duration) — $3;

                                  [(A) Provides a red drum tag for persons that are exempt from the purchase of a resident or non-resident fishing license of any type or duration.]

                                  [(B) This tag is available in a digital version. At the time of execution, the user must be in possession of a smart phone, computer, tablet, or similar device indicating acquisition of the digital tag.]

                         (2) bonus red drum tag (provides a second red drum tag to persons who[that] have previously received a red drum tag) — $3. [This tag is available in a digital version. At the time of execution, the user must be in possession of a smart phone, computer, tablet, or similar device indicating acquisition of the digital tag;]

                         (3) exempt angler spotted seatrout tag (provides a spotted seatrout tag for persons who are exempt by statute or rule from the purchase of a resident or non-resident fishing license of any type or duration) — $3;

                                  [(A) provides a spotted seatrout tag for persons that are exempt from the purchase of a resident or non-resident fishing license of any type or duration.]

                                  [(B) this tag is available in a digital version. At the time of execution, the user must be in possession of a smart phone, computer, tablet, or similar device indicating acquisition of the digital tag].

                         (4) bonus spotted seatrout tag ([-] provides a second spotted seatrout tag to persons who[that] have previously received a spotted seatrout tag) — $3. [This tag is available in a digital version. At the time of execution, the user must be in possession of a smart phone, computer, tablet, or similar device indicating acquisition of the digital tag;]

                         (5) – (6) (No change.)

        §53.18. [License Issuance Procedures, Fees, Possession, and Exemption Rules — Provisions for] Digital  Products.

                (a) Digital Products.

                         (1) The licenses, stamp endorsements, and tags listed in §§53.3, 53.4, 53.5(a) and (c), and 53.6(a) — (c) and (e)(1) – (4) of this title (relating to Combination Hunting and Fishing License Packages; Lifetime Licenses; Recreational Hunting Licenses, Stamps, and Tags; and Recreational Fishing Licenses, Stamps, and Tags) are available as a digital product. Digital licenses do not include the license log or the physical license tags found on the traditional physical license.

                         (2) In addition to the license products identified in paragraph (1) of this subsection, the following items are available as digital products:

                                 (A) the public hunting permits identified in §53.10(a)(1) and (3) of this title (relating to Public Hunting Permits and Fees);

                                 (B) the federal sandhill crane permit required by §65.318 of this title (relating to Sandhill Crane);

                                 (C) the hunter education deferral option established in §51.80 of this title (relating to Mandatory Hunter Education);

                                 (D) the reptile and amphibian stamp required by Parks and Wildlife Code, Chapter 43, Subchapter W; and

                                  (E) the recreational controlled exotic snake permit required by §55.652 of this title (relating to Controlled Exotic Snakes). [The provisions of this section are in addition to the provisions of §53.2 of this title (relating to License Issuance Procedures, Fees, Possession, and Exemption Rules) and to the extent that any provision of this section conflicts with the provisions of §53.2 of this title, this section controls].

                 (b) General Provisions.

                         (1) To the extent that any provision of this section conflicts with the provisions of §53.2 of this title, this section controls.

                         (2) 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.                        

                         (3) The fees established in this division also apply to the issuance of the digital products  identified in this section.

(4) The digital products associated with items enumerated in §53.4 of this title are available beginning the year after the year of purchase of the license (and each year thereafter).

                        (5) A person who has acquired a digital product may engage in an activity permitted or authorized by the digital product, provided the person[Hunting license possession. A person may hunt in this state without having a valid physical hunting license in immediate possession if that person has acquired a license electronically and] has a receipt, notification, or application data from the department on a smart phone, computer, tablet, or similar device indicating acquisition of the appropriate digital product.[a digital license described in §53.3(a)(12) of this title (relating to Combination Hunting and Fishing License Packages), §53.4 of this title (relating to Lifetime Licenses), or §53.5(a)(3) of this title (relating to Recreational Hunting Licenses, Stamps, and Tags).]

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

                         (7) Because a digital product does not physically exist, the provisions of this subchapter that apply to replacement licenses do not apply to digital products.

                 (c) Fishing [license possession].

                         [(1)] A person may fish in this state without having an appropriate,[a] valid physical fishing license product in immediate possession if that person has acquired a license electronically and has a receipt, notification, or application data from the department on a smart phone, computer, tablet, or similar device indicating acquisition of an appropriate[a] digital product[license described in §53.3(a)(12) of this title or §53.4 of this title].

                         [(2) A 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, and valid red drum tag in immediate possession, if the person has:]

                                  [(A) obtained a valid digital exempt angler red drum tag; or]

                                  [(B) purchased a valid digital license described in §53.3(a)(12) of this title or a valid license with digital tags under 53.4 of this title].

                         [(3) A person may catch and retain a spotted seatrout 28 inches or greater in length in the coastal waters of this state without having a valid fishing license, saltwater sportfishing stamp, and valid spotted seatrout tag in immediate possession, if the person has:]

                                  [(A) obtained a valid digital exempt angler spotted seatrout tag; or]

                                  [(B) purchased a valid digital license described in §53.3(a)(12) of this title or a valid license with digital tags under 53.4 of this title.]

                 (d) Fees.[Issuance of licenses, stamp endorsements, and tags electronically (on-line or by telephone).]

                         [(1) A person may acquire a tag electronically from the department by agreeing to pay a convenience fee of up to $5 in addition to the normal tag fee, if a fee is required. This fee shall not be charged if the tag is acquired in the same transaction with a license.]

                         [(2)] The fees established by this subsection apply to the electronic acquisition of a digital product[license, stamp endorsement, or tag] identified in subsection (a) of this section[§53.3(a)(12) of this title, 53.4 of this title, §53.5(a)(3) of this title, or §53.6 of this title (relating to Recreational Fishing Licenses, Stamps, and Tags)].

        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 amendment is proposed under the authority of Parks and Wildlife Code, §42.010, which requires the department 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; §61.052, 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; and §61.054 which requires the commission to specify 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, 46, 50, and 61.

        §53.60. Stamps.

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

                         (1) (No change.)

                         (2) A digital combination license or combination license package issued under the provisions of §53.18 of this title (relating to Digital  Products[§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 endorsement in immediate possession if the person:

                                  (A) possesses a valid digital product[license] issued under the provisions of §53.18 of this title[§53.3(a)(12) of this title, a valid license with digital tags under §53.4 of this title (relating to Lifetime Licenses) or §53.5(a)(3) of this title (relating to Recreational Hunting Licenses, Stamps, and Tags]; or

                                  (B) has acquired a stamp endorsement electronically 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 endorsement in immediate possession if the person:

                                  (A) possesses a valid digital product[license] issued under the provisions of §53.18 of this title §53.3(a)(12) of this title or a valid license with digital tags under §53.4 of this title]; or

                                  (B) has acquired a stamp endorsement electronically 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