No. 38230 (Amendment): Rule R657-27. License Agent Procedures

(Amendment)

DAR File No.: 38230
Filed: 01/13/2014 12:30:54 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended pursuant to Regional Advisory Council and Wildlife Board meetings conducted annually for taking public input and reviewing the Division's license agent program.

Summary of the rule or change:

Rule R657-27 is being amended to: 1) allow the Division to utilize Automated Clearing House payments; 2) require license agents to have access to the Division webpage for customer use; 3) remove the requirement for the Division to provide equipment to the license agent; 4) remove the requirement for license agents to maintain audit copies of licenses and permits; and 5) make minor language corrections to make the rule consistent with other rules in the Division.

State statutory or constitutional authorization for this rule:

• Section 23-19-15

Anticipated cost or savings to:

the state budget:

The amendment gives the division greater flexibility in collecting money owed from license agents, as well as a cost savings on the equipment that will no longer be purchased for the agents. The Division of Wildlife Resources (DWR) determines that there may be a savings impact to the state budget or DWR's budget associated with this amendment.

local governments:

The amendment only allows for greater flexibility in dealing with the agents and therefore does not have direct impact on local governments. This filing does not create any direct cost or savings impact to local governments because they are not directly affected by the rule. Nor are local governments indirectly impacted.

small businesses:

The amendment allows the division greater flexibility in dealing with license agents. This amendment may impose a cost on those wishing to participate as license agents and having to purchase a computer and printer to do so.

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

The amendment allows the Division greater flexibility in dealing with license agents. This amendment may impose a cost on those wishing to participate as license agents and having to purchase a computer and printer to do so.

Compliance costs for affected persons:

New license agents would be required to supply their own computer and printer. This requirement may add an additional cost to the license agent.

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

The amendments to this rule may create an impact on businesses wishing become license agents. The business would be required to provide a computer and printer.

Michael R. Styler, Executive Director

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

Natural Resources
Wildlife Resources
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Staci Coons at the above address, by phone at 801-538-4718, by FAX at 801-538-4709, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/03/2014

This rule may become effective on:

03/10/2014

Authorized by:

Gregory Sheehan, Director

RULE TEXT

R657. Natural Resources, Wildlife Resources.

R657-27. License Agent Procedures.

R657-27-1. Purpose and Authority.

Under Section 23-19-15, this rule provides the application procedures, standards, and requirements for wildlife license agents.

 

R657-27-2. Definitions.

(1) Terms used in this rule are defined in Section 23-13-2.

(2) In addition:

(a) "Automated Clearing House or ACH" means a division approved method of payment of monies owed the division through an automatic electronic process.

(b) "Agent hunting and fishing licenses online" means the web application that allows an license agent to [print]sell wildlife documents[ on license paper].

([b]c) "Bond" means a surety bond to remain in full force and effect continuously and indefinitely, until canceled.

([c]d) "Computer hardware" means electronic equipment the division deems necessary to perform the minimum required functions of the division's online license sales application system[ that may include a central processing unit, cables, or router].

([d]e) "Deactivated license agent or deactivated" means a license agent that holds license agent status but is temporarily precluded from selling wildlife documents for failure to comply with this rule or any other laws or agreements regulating license agent activity.

([e]f) "License agent" means a person authorized by the division to sell wildlife documents.

([f]g) "License Agent Application" means a written request to be authorized by the division to sell wildlife documents.

([g]h) "License Agent Authorization" means an agreement between the division and a license agent, allowing a license agent to sell wildlife documents.

([h]i) "License paper" means paper designated by the division for the sole purpose of printing specified licenses or permits through the agent hunting and fishing licenses online sales system.

([i]j) "Location" means the building or structure from which a license agent is authorized to sell wildlife documents.

([j]k) "Presiding officer" means the hearing officer designated by the director of the division.

([k]l) "Remuneration" means money that a license agent receives for each wildlife document sold as provided in Section 23-19-15.

([l]m) "Wildlife documents" means licenses, permits and tags [preprinted]issued by the division or [printed ]by [the]a license agent[ on license paper].

 

R657-27-3. License Agent Application.

(1) License agent applications may be obtained from the Licensing Section in the Salt Lake Office or downloaded from the division's website.

(2) License agent applications shall be considered from any person located within Utah or in close proximity to Utah.

(3) Applications shall be processed within a reasonable timeframe.

(4) The applicant must:

(a) complete and return the application to the Licensing Section in the Salt Lake Office; and

(b) pay a non refundable application fee.

(5) A separate application and application fee must be submitted for each location where wildlife documents will be sold.

(6) The division may provide assistance to new and existing license agents as provided in Subsection R657-27-4(1)(b),(1)(c) or (1)(d).

 

R657-27-4. License Agent Eligibility - Reasons for Application Denial - Term of Authorization.

(1) A new license agent must meet the criteria provided in Subsection (a), except as provided in Subsection (b)[ or (c)].

(a) A license agent must:

(i) successfully complete a division-sponsored training session;

(ii) provide and maintain approved computer hardware capable of processing and printing licenses and permits in a permanent, clear, and a legible manner[; and].

(b) The division may provide a printer as required in Subsection (a)(ii) provided the license agent's projected sales is estimated to be at least one-thousand dollars per year or a satisfactory volume per year as determined by the division.

([c) The division may provide assistance up to one-thousand dollars for computer hardware required in Subsection (a)(ii) provided:

(i) there is not a current, eligible license agent within 45 miles, or a convenient distance as determined by the division, of the proposed license agent location; and

(ii) the estimated sales revenue from the proposed location will recover the cost of the computer hardware within six months of providing the computer hardware.

(d) The division may provide assistance for a data line connection and the associated ongoing expense of the data line connection provided:

(i) there is not a current, eligible license agent within 45 miles, or a convenient distance as determined by the division, of the proposed license agent location; and

(ii) the division anticipates the monthly cost for the data line connection to be less than 20 percent of the estimated monthly collection from the license agent.

(e) The division shall annually review the ongoing expenses for a data line connection to ensure the license agent is eligible for the assistance allowed in Subsection (d).

(f)]i) A license agent must remain a license agent for the division for at least six months to retain the [computer hardware or ]printer as provided in Subsections (b)[ or (c)].

(2) Use of the agent hunting and fishing licenses online system must be used in compliance with the [users]agent manual provided by the division.

(3) The division shall send the applicant a written notice stating the reason for denial.

(4) If the division approves the license agent application, a license agent authorization shall be sent to the applicant.

(5) The license agent authorization is not effective until:

(a) it is signed by the applicant; and

(b) signed by the director or designee.

(6)(a) The license agent authorization must be received by the Licensing Section in the Salt Lake Office within a reasonable timeframe of being mailed to the applicant.

(b) A separate application, application fee, and license agent authorization is required for each location where wildlife documents will be sold.

(7) Each license agent authorization shall be established for a term of ten years.

(8) The division may deny a license agent application for any of the following reasons:

(a) A sufficient number of license agents already exist in the area;

(b) The applicant does not have adequate security including a safe or locking cabinet in which to store wildlife documents or license paper;

(c) The applicant has previously been authorized to sell wildlife documents or possess license paper and the applicant:

(i) failed to comply with the license agent authorization or any provision of statute or rule governing license agents; or

(ii) was deactivated or revoked by the division as a license agent;

(d) The applicant provided false information on the license agent application; or

(e) The applicant has been convicted, pleaded guilty, pleaded no contest, or entered into a plea in abeyance to a criminal offense that bears a reasonable relationship to the license agent's ability to competently and responsibly perform the functions of a license agent.

 

R657-27-5. Bond Requirement.

(1) After approval, but before the license agent authorization is executed, the division may require the applicant to post a reasonable bond payable to the division in an amount determined by the division.

(2) The division may require any existing license agent to obtain a reasonable bond in an amount determined by the division after providing the license agent 30 business days written notice.

(3) The division may require a reasonable increase in the amount of the bond after providing the license agent 30 business days written notice.

 

R657-27-6.  Automated Clearing House (ACH) Payments.

(1) The division may require license agents to establish and maintain an account capable of utilizing an Automated Clearing House payment method in order to transfer monies due to the division.

 

R657-27-7. License Agent Obligations.

(1) Each license agent must:

(a) comply with the requirement and provisions provided in Section 23-19-15;

(b) keep wildlife documents or license paper secure and out of the public view during business hours;

(c) keep wildlife documents or license paper in a safe or locked cabinet after business hours;

(d) display all signs and distribute [proclamations]guidebooks provided by the division;

(e) have all sales clerks and management staff available for sales training;

(f) maintain a License Agent Manual provided by the division and make it available to the license agent's staff, including supplemental manuals and addendums; and

(g) retain agent copies of [licenses and permits for 12 months following the month of sale]wildlife documents issued for as long as is necessary for the purposes of the license agent account reconciliation, at which time agent copies of licenses and permits must be destroyed by burning, shredding or submitting to the division.

(h) allow agent employees access to the Utah.gov internet domain from a place wildlife documents are sold in order to provide access to online resources pertinent to issuing wildlife documents and assisting customers with wildlife document related questions.

(2) If a license agent becomes delinquent on reporting or remission of proceeds Subsection (2)(a), (2)(b) or (2)(c) shall apply.

(a) The license agent must immediately submit all reports when due along with the remission of required proceeds.

(b) If the license sales report is submitted in accordance with Subsection (1)(a) but funds are not submitted with the report then the following applies:

(i) A repayment plan may be structured in an agreement that will allow repayment in equal monthly installments for up to six months at a payment level that will provide repayment of the principal along with an annual percentage interest rate (APR) of 12 percent. This APR shall be calculated back to the date that the payment should have been received in accordance with Subsection (1)(a);

(ii) If the ongoing monthly report and proceed submissions are not received for the future months, from the month of the agreement in accordance with Subsection (1)(a), then any agreement made in Subsection (2)(b)(i) may be terminated and all outstanding balances and accrued interest shall become due immediately, along with a penalty of 20 percent of the unpaid balance. Interest shall continue to accumulate on any unpaid balance, including the penalty, at the APR;

(iii) Activate the bond and collect all remaining funds in accordance with Section R657-27-5 and hold any remaining unpaid balances of penalty, ongoing interest, and principle amounts as a receivable from the license agent; or

(iv) If the license agent enters into an agreement with the division as provided in Subsection (2)(b)(i), and then violates the terms of that agreement, the division may begin the revocation process in accordance with Section R657-27-[11.]12.

(c) Nothing in this rule shall be construed as requiring the division to offer a repayment agreement to a license agent delinquent on report submissions or proceeds remissions before taking action to revoke license agent status.

(d) If the license agent does not submit a monthly report as provided in Subsection (1)(a), or if the license agent does not immediately pay the delinquent funds or fails to execute and abide by the terms of a repayment agreement as provided in Subsection (2)(b), the division may:

(i) change the license agent's status to deactivated;

(ii) withhold issuing additional wildlife document inventory;

(iii) withhold access to the agent hunting and fishing licenses online sales system;

(iv) collect the license agent's inventory of wildlife documents and license paper, and determine unaccounted inventory of wildlife documents and license paper;

(v) assess a monetary penalty for each wildlife document and piece of license paper unaccounted for as provided in Subsection R657-27-[7]8(2);

(vi) take action to revoke license agent status;

(vii) create a receivable from the license agent that equals the amount due as determined in Subsection (1)(a) and charge a 20 percent late penalty on the entire balance, and accumulate the unpaid balance, included penalties, at a 12 percent APR from the due date of the earliest date in which a license agent failed to submit a report in accordance with Subsection (1)(a); or

(viii) activate the bond and collect all available funds remaining in accordance with Section R657-27-5 and hold any remaining unpaid balances of penalty, ongoing interest, and principle amounts as a receivable from the license agent.

(e) A deactivated license agent that has not been revoked may regain active status by paying all due balances in full, and providing a bond, provided the license agent is otherwise in compliance with this rule or any other laws or agreements regulating license agent activity.

(f)(i) The division reserves the right to unilaterally and immediately modify monthly reporting or payment requirements when any License Agent is:

(A) in bankruptcy;

(B) insolvent;

(C) financially distressed;

(D) unable to meet reporting or payment obligations; or

(E) otherwise experiencing events or conditions that may compromise their ability to comply with reporting and payment obligations.

(ii) The division may require license funds to be transferred to the division more frequently than monthly, and may require the use of Automated Clearing House payments, Electronic Funds Transfer payments, or other expedited methods of payment.

 

R657-27-[7.]8. Lost or Stolen Wildlife Documents or License Paper.

(1) The license agent must act as bailee for purposes of safeguarding all wildlife documents or license paper issued to the license agent by the division.

(2)(a) The license agent must remit full payment, less remuneration, to the division for any wildlife documents lost, stolen, or unaccounted for unless otherwise relieved for good cause by the director.

(b) The license agent must remit full payment for lost, stolen, or unaccounted license paper in the amount of $10 per sheet of license paper.

(c) Payments made to the division for any wildlife documents or license paper that are lost or unaccounted may be refunded if the wildlife documents or license paper are :

(i) Approved by the division and

(ii) returned to the Licensing Section in the Salt Lake office by [June 30 of the current state fiscal year]within 12 months from the date of payment in subsection (c).

 

R657-27-[8.]9. Audits.

(1) License agents are subject to an audit without prior notification anytime during normal business hours to assess financial and procedural compliance with statute, rule, and the terms of the license agent authorization.

(2) The division shall provide a written report to the license agent of any finding of noncompliance within five days of the completion of the audit.

 

R657-27-[9.]10. Checks Returned for Non-sufficient Funds.

If a check from a license agent is returned to the division for non-sufficient funds, the division may:

(1) require a license agent to remit payment for wildlife documents in the form of a cashiers check , an automated clearing house payment or money order;

(2) change the license agent status to deactivated;

(3) activate the bond;[ or]

(4) submit the license agent's account to the Utah Office of Debt Collection for collection activity[.]; or

(5) Assess a Non Sufficient Funds (NSF) handling fee of $20.00.

 

R657-27-[10.]11. Change of Business Ownership.

(1) License agent authorizations are nontransferable.

(2) The license agent must notify the division of any anticipated change of ownership of the license agent's business at least 30 business days prior to the change of ownership.

(3) Prior to change of ownership, unless otherwise directed by the division in writing, the license agent must:

(a) remit payment for all wildlife documents sold minus remuneration; and

(b) return all unsold wildlife documents or license paper to the division.

 

R657-27-[11.]12. Revocation of License Agent Authorization.

(1) The presiding officer may revoke a license agent authorization pursuant to Chapter 4, Title 63G, Utah Administrative Procedures Act, if the presiding officer determines that the license agent:

(a) violated the terms of the license agent authorization;

(b) fails to comply with reporting or payments obligations, becomes insolvent, declares bankruptcy, or shows indication of financial instability or any other sign that public funds are in jeopardy or potentially unrecoverable by the division.

(c) fails to maintain a bond in accordance with Section R657-27-5;

(d) is found to have committed fraud regarding wildlife documents or license paper;

(e) violated any provision of Title 23, Wildlife Resources Code;

(f) violated any rule promulgated under Title 23, Wildlife Resources Code; or

(g) has been convicted, pleaded guilty, pleaded no contest, or entered into a plea in abeyance to a criminal offense that bears a reasonable relationship to the license agent's ability to competently and responsibly perform the functions of a license agent.

(2) The presiding officer may hold a hearing to determine matters relating to the license agent revocation if the license agent makes a written request for a hearing within 20 days after the notice of agency action is issued.

 

R657-27-[12.]13. Termination of License Agent Authorization by the License Agent.

(1) A license agent may terminate a license agent authorization by submitting a written request to the Licensing Section in the Salt Lake Office.

(2) Any request for termination must state the requested date of termination.

(3) On or before the effective date of termination the license agent must:

(a) discontinue selling wildlife documents;

(b) return all unsold wildlife documents or license paper to the division; and

(c) return to the division any signs, [proclamations]guidebooks or other information provided by the division.

(4) On or before the 10th day of the month following the date of termination the license agent must remit payment for all wildlife documents minus remuneration to the division.

 

R657-27-[13.]14. Renewal Application of a License Agent Authorization.

(1) At the end of the [five]ten-year term of authorization to sell wildlife documents, the division shall provide a renewal notice and renewal application to the license agent.

(2)(a) The license agent must complete and return the renewal application to the Licensing Section in the Salt Lake Office within 30 business days of being mailed to the license agent.

(b) The division will not charge a renewal application fee.

(3) If the license agent fails to return the renewal application within 30 business days of being mailed, the division may:

(a) confiscate wildlife document inventories;

(b) not provide new wildlife document inventories; or

(c) interrupt use of the agent hunting and fishing licenses online system.

(2) The division may deny a license agent renewal application for any of the reasons provided in Section R657-27-4(1).

 

R657-27-[14.]15. Violation.

(1) It is unlawful for a license agent to sell wildlife documents in violation of the License Agent Authorization.

 

R657-27-[15.]16. License Agent Authorization Subject to Change.

(1) A license agent authorization issued or renewed by the division under this rule is a privilege and not a right. The license agent authorization authorizes the license agent to sell wildlife documents subject to all present and future conditions, restrictions, and regulations imposed on such activities by the division, the Wildlife Board, or the State of Utah.

(2) A license agent authorization does not guarantee or otherwise legally entitle the license agent to any of the following:

(a) a minimum number of wildlife documents;

(b) a particular type or types of wildlife documents;

(c) access to any particular wildlife document distribution system; or

(d) any other right or opportunity advantageous to the license agent.

(3) The procedures, processes and opportunities outlined in this rule regulating license agents and the distribution of wildlife documents are all subject to future change, including discontinuation, by the division and the Wildlife Board.

 

KEY: licensing, wildlife, wildlife law, rules and procedures

Date of Enactment or Last Substantive Amendment: [August 10, 2009]2014

Notice of Continuation: April 2, 2012

Authorizing, and Implemented or Interpreted Law: 23-19-15

 

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