No. 31610 (New Rule): R657-57. Division Variance Rule

DAR File No.: 31610
Filed: 06/24/2008, 08:54
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is established to provide authority, standards, and procedures for granting remedial relief to persons precluded from obtaining or using a wildlife document because of an event or condition beyond their control.

Summary of the rule or change:

This rule provides the standards and procedures for granting variance requests to qualified individuals. This rule outlines the authority scope of the Wildlife Board and the Division of Wildlife Resources (DWR).

State statutory or constitutional authorization for this rule:

Sections 23-14-18 and 23-14-19

Anticipated cost or savings to:

the state budget:

This new rule will set the criteria for granting remedial relief to persons precluded from obtaining or using a wildlife document because of an event or condition beyond their control. DWR determines that these amendments do not create a cost or savings impact to the state budget or DWR's budget since the changes will not increase workload and can be carried out with existing budget.

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 because the rule does not create a situation requiring services from local governments.

small businesses and persons other than businesses:

This rule outlines criteria and scope of authority used to grant remedial relief to persons precluded from obtaining or using a wildlife document because of an event or condition beyond their control. Therefore, the amendments do not impose any additional requirements on other persons, nor generate a cost or savings impact to other persons.

Compliance costs for affected persons:

DWR determines that these amendments do not create a cost or savings impact to individuals who participate in wildlife related activities.

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

The amendments to this rule do not create an impact on businesses. 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:

08/14/2008

This rule may become effective on:

08/21/2008

Authorized by:

James F Karpowitz, Director

RULE TEXT

R657. Natural Resources, Wildlife Resources.

R657-57. Division Variance Rule.

R657-57-1. Purpose and Authority.

(1) Under authority of Sections 23-14-18 and 23-14-19 this rule is established to provide authority, standards and procedures for granting remedial relief to persons precluded from obtaining or using a wildlife document because of an event or condition beyond their control.

 

R657-57-2. Definitions.

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

(2) In addition:

(a) "CWMU" means cooperative wildlife management unit, as defined in Section 23-23-2;

(b) "Event or condition" means a circumstance in a person's life beyond their control that precludes or substantially limits their ability to obtain or use a wildlife document;

(c) "Immediate family member" means a person's spouse, child, stepchild, grandchild, brother, sister, parent, stepparent, grandparent, mother-in-law, or father-in-law;

(d) "Variance" means remedial relief granted by the Division or Wildlife Board to restore a person's opportunity to obtain or use a wildlife document which is completely lost or substantially impaired because of an intervening event or condition; and

(e) "Wildlife document" means any license, permit, tag, or certificate of registration issued by the Division.

 

R657-57-3. Division Variance Authority.

(1) The Division may issue variances to qualified individuals, subject to the standards, limitations, requirements, and procedures in this rule.

 

R657-57-4. Division Variance Authority Scope.

(1)(a) The Division may grant a season extension variance extending the hunting season on an applicant's wildlife document to the same or substantially similar hunt in the following year, provided:

(i) the variance request involves a wildlife document authorized in R657-57-5;

(ii) the applicant was completely precluded during the prescribed hunting season from using a wildlife document because of a qualifying event or condition set forth in R657-57-6; and

(A) the qualifying event or condition was not the result of the applicant's willful misconduct or gross negligent acts or omissions;

(iii) the season extension is restricted to the same species, gender, unit, weapon type, and season as the original wildlife document;

(iv) any changes in unit descriptions and season dates in the extension year are applied; and

(v) the variance is otherwise requested and issued in compliance with the standards, requirements and procedures set forth in this rule.

(b) Any waiting period associated with a wildlife document for which a season extension variance is granted begins on the date the original wildlife document is obtained.

(2)(a) The Division may grant a variance by awarding a bonus or preference point to a person who filed an untimely wildlife document application in a Division administered drawing, provided:

(i) the variance request involves a wildlife document authorized in R657-57-5;

(ii) the applicant was precluded or substantially impaired from filing a timely application because of a qualifying event or condition set forth in R657-57-6;

(iii) the untimely application was rejected and a bonus or preference point was not awarded for the selected species;

(iv) the applicant would have been eligible to receive the bonus or preference point had the application been timely filed; and

(v) the variance is otherwise requested and issued in compliance with the standards, requirements and procedures set forth in this rule.

(3) A Division administered drawing for purposes of subsection (2) does not include a drawing conducted at a wildlife convention pursuant to R657-55.

 

R657-57-5. Eligible Wildlife Documents.

(1) The Division's authority to grant a variance consistent with the requirements of this rule extends to all resident and nonresident wildlife documents, excluding the following:

(a) hunting licenses;

(b) fishing licenses;

(c) combination licenses;

(d) waterfowl permits;

(e) sandhill crane permits;

(f) upland game permits;

(g) furbearer licenses;

(h) bobcat and marten permits;

(i) cougar harvest objective permits;

(j) cougar and bear pursuit permits; and

(k) certificates of registration.

(2) A season extension variance for a CWMU permit may not be granted without the concurrence of the CWMU operator.

 

R657-57-6. Qualifying Events and Conditions.

(1) The Division's authority to grant a variance consistent with the requirements of this rule is limited to persons that are completely precluded during the prescribed season from participating in the hunting activity authorized by an eligible wildlife document, or precluded or substantially impaired from filing a timely wildlife document application in a Division administered drawing because of:

(a) personal illness or injury;

(b) the death, or significant injury or illness of an immediate family member; or

(c) mobilization or deployment under orders of the United States Armed forces, a public health organization, or public safety organization in the interest of national defense or a national emergency.

 

R657-57-7. Variance Application.

(1) A person may request a variance pursuant to the requirements of this rule by filing an application with the Division within 200 days of the:

(a) last day of the hunting season for which a season extension variance is requested; or

(b) drawing application deadline for which a bonus or preference point variance is sought. (2) An application for a season extension variance shall contain the following information and documentation:

(a) name, address and telephone number of the applicant;

(b) a brief statement of the variance relief sought;

(c) a description of the wildlife document for which a season extension variance is sought, including the permit number, species and sex, season dates, and weapon type;

(d) the original wildlife document for which a season extension variance is sought with an undetached and unnotched tag;

(e) a statement verifying the applicant was completely precluded from participating in a qualified hunt because of:

(i) personal illness or injury;

(ii) the death, or significant injury or illness of an immediate family member; or

(iii) mobilization or deployment under orders of the United States Armed Forces, or a public health or public safety organization in the interest of national defense or a national emergency.

(f) corroborating documentation of the qualifying event or condition listed in Subsection (2)(e), in the form of:

(i) a physician's written statement describing and confirming the qualifying injury or illness of the applicant or an immediate family member;

(ii) a photocopy of the deceased immediate family member's certified death certificate; or

(iii) a photocopy of the military orders, or a letter from an employment supervisor on official public health or public safety organization letterhead stating:

(A) the branch of the United States Armed Forces, or name of the public health organization or public safety organization from which the applicant is deployed or mobilized; and

(B) the nature and length of duty while deployed or mobilized.

(3) An application for a bonus or preference point variance shall contain the following information and documentation:

(a) name, address and telephone number of the applicant;

(b) a brief statement of the variance relief sought;

(c) a description of the wildlife document application and permit type for which a bonus or preference point variance is sought, including the wildlife species and sex, season dates, and weapon type;

(d) a statement verifying the applicant was precluded or substantially impaired from submitting a wildlife document application because of:

(i) personal illness or injury;

(ii) the death, or significant injury or illness of an immediate family member; or

(iii) mobilization or deployment under orders of the United States Armed Forces, or a public health or public safety organization in the interest of national defense or a national emergency.

(e) corroborating documentation of the qualifying event or condition listed in Subsection (3)(d), in the form of:

(i) a physician's written statement describing and confirming the qualifying injury or illness of the applicant or an immediate family member;

(ii) a photocopy of the deceased immediate family member's certified death certificate; or

(iii) a photocopy of the military orders, or a letter from an employment supervisor on official public health or public safety organization letterhead stating:

(A) the branch of the United States Armed Forces, or name of the public health organization or public safety organization from which the applicant is deployed or mobilized; and

(B) the nature and length of their duty while deployed or mobilized.

(4) The Division may reject an application that is incomplete or that contains false or misleading information.

(5) The Division may require the applicant to provide additional information, documentation, or clarification in conjunction with an application to determine eligibility for a variance.

(6) The Division shall make its written decision within 30 days of receiving an application for variance and mail a copy of the decision to the applicant.

 

R657-57-8. Division Variance Committee.

(1) The Division shall establish a variance committee consisting of the Wildlife Chief, Administrative Services Chief, Licensing Coordinator, and Rules Coordinator, or their designees, which shall:

(a) review variance applications submitted to the Division pursuant to this rule;

(b) determine facts relative to variance requests;

(c) apply the provisions of this rule to relevant facts; and

(d) grant or deny variance requests in accordance with this rule.

(2) Any variance request granted or denied shall be reviewed and approved by the Division director/designee before notice of decision is provided to the variance request applicant.

 

R657-57-9. Variance Denial.

(1) The variance committee and Division director shall deny a variance request where the applicant:

(a) fails to satisfy the variance criteria set forth in this rule;

(b) is under a judicial or administrative order suspending his/her Utah hunting privileges for the species at the time:

(i) the variance request is filed or at any time during a extension season; or

(ii) the wildlife document application period expired for a bonus or preference point variance;

(c) was legally ineligible to receive or use the wildlife document for which a season extension variance is sought;

(d) is legally ineligible to hunt during the extension season;

(e) is legally ineligible to use the weapon type authorized by the wildlife document during the original hunting season or the extension season;

(f) provides false or misleading information on a material fact in the variance request application; or

(g) provides false or misleading information on a material fact in a previous variance request application.

(2) The Division may deny a variance request when it is contrary to sound public policy, wildlife management objectives, Division policies and interests, or the interests sought to be served by this rule.

 

R657-57-10. Wildlife Board Appeals.

(1) A person may appeal the Division's decision on a variance application to the Wildlife Board pursuant to the requirements of this rule. The appeal request must be in writing and received by the Wildlife Board within 30 calendar days of the issuance date on the Division's decision.

(2) The appeal shall contain the following information and documentation:

(a) name, address and telephone number of the petitioner;

(b) a statement of the variance relief sought and justification for the relief;

(c) a description of the wildlife document for which the variance is sought, including the document number, species and sex, season dates, and weapon type;

(d) the original wildlife document for which the variance is sought;

(e) a statement describing the degree of lost opportunity because of an event or condition; and

(f) corroborating documentation of the event or condition listed in R657-57-7(2)(e) and (3)(d), which may include:

(i) a physician's written statement;

(ii) a certified death certificate photocopy;

(iii) a photocopy of the military orders;

(iv) a letter from an employment supervisor on official letterhead; or

(v) court documentation.

(3) The Wildlife Board may reject a variance appeal that is incomplete or that contains false or misleading information.

(4) The Wildlife Board may require the petitioner to provide additional information, documentation, or clarification in conjunction with the variance appeal.

(5) The Wildlife Board may set a time and date for a hearing on the variance appeal where the petitioner will be given an opportunity to address the Wildlife Board concerning the appeal.

(a) The Wildlife Board will provide the petitioner notice of the date, time, and location of the hearing, and the petitioner or a representative shall be present at the hearing, in person or telephonically, to advance the merits of the variance appeal.

(b) Failure to participate in the hearing may result in dismissal of the variance appeal.

(6) The Wildlife Board may sustain, overturn, or modify the Division's order which is the subject of the variance appeal, provided the relief granted is consistent with the standards, limitations, requirements, and procedures in R657-57-11 through R657-57-13.

(7) The Wildlife Board will prepare a written decision on the variance appeal and mail a copy to the petitioner.

 

R657-57-11. Wildlife Board Variance Authority.

(1) The Wildlife Board may grant a variance toany regulation promulgated in Title R657 of the Administrative Code or in proclamation concerning the acquisition or useof a wildlife document, provided the event or condition justifying the variance:

(a) is not the result of the applicant's willful misconduct or gross negligent acts or omissions;

(b) precludes the applicant from participating in:

(i) the activity authorized by the wildlife document during a substantial portion of the authorized season; or

(ii) the application or drawing procedures for receiving a wildlife document; and

(c) is of a nature that it deprives opportunity from the applicant in a substantially more severe manner than other similarly situated individuals.

(2) The Wildlife Board is limited to considering only those variance applications on which the Division has issued a letter indicating the variance relief sought is beyond its legal authority to grant.

(3) The Wildlife Board may grant a variance that extends a wildlife document season no more than five years into the future.

(4) The Wildlife Board may award a bonus or preference point pursuant to a variance request only when the applicant would have received such a point had the event or condition not intervened.

(5) The Wildlife Board may not grant a variance in direct conflict with any provision of the Wildlife Code or elsewhere in statute.

(6) The Wildlife Board may not refund wildlife document fees, except as authorized in Sections 23-19-38 and 23-19-38.2.

 

R657-57-12. Variance Guidelines.

(1) The Wildlife Board may use the following guidelines in considering and deciding variance appeals and requests submitted pursuant to this rule:

(a) monetary cost of the wildlife document;

(b) degree of difficulty in obtaining the original wildlife document;

(c) future opportunity to obtain the same or similar wildlife document;

(d) extent of lost opportunity;

(e) time actually engaged in the activity authorized by the wildlife document relative to the overall season length;

(f) time available to engage in the activity authorized by the wildlife document prior to the event or condition precluding further activity;

(g) impact on wildlife management objectives;

(h) degree of difficulty in tracking and monitoring season extensions into the future;

(i) applicant's fault or contribution in failing to mitigate the degree of lost opportunity;

(j) nature of the event or condition contrasted against the advisability of attempting to insure optimal opportunity;

(k) objective of a variance is to restore lost opportunity, not provide increased opportunity; and

(l) consistency with previous variance request decisions.

(2) Nothing herein shall be construed as limiting or prohibiting the Wildlife Board from considering additional factors in its discussions and deliberations concerning variance appeals and requests.

 

R657-57-13. Wildlife Board Variance Denial.

(1) The Wildlife Board shall deny a variance appeal or request where the applicant:

(a) fails to satisfy the variance criteria set forth in this rule;

(b) is under a judicial or administrative order suspending his/her wildlife document privileges at the time the variance request is filed or at any time while the variance would be in effect;

(c) was legally ineligible to apply for, obtain, or use the original wildlife document for which a variance is sought;

(d) is legally ineligible to engage in the activity proposed for authorization in a variance;

(e) is legally ineligible to use the weapon type or implement authorized by a wildlife document during the original season or the proposed substitute season;

(f) provides false or misleading information on a material fact in the variance request application or the appeal; or

(g) provides false or misleading information on a material fact in a previous variance request application or appeal.

(2) The Wildlife Board may deny a variance appeal or request when it is contrary to sound public policy, wildlife management objectives, Division policies and interests, or the interests sought to be served by this rule.

 

R657-57-14. Fraud, Deceit, or Misrepresentation.

Any variance obtained under this rule by fraud, deceit or misrepresentation is void.

 

R657-57-15. Finality of Decision.

(1) The decision of the Wildlife Board on any variance appeal or request under this rule constitutes final agency action and is not subject to:

(a) further administrative review; or

(b) judicial review under Title 63G, Chapter 4 of the Utah Code, Utah Administrative Procedures Act.

(2) The variance relief authorized in this rule is discretionary and neither a right nor entitlement in form or substance. The Division and Wildlife Board shall exercise sole discretion in determining whether relief will be granted and to what extent.

 

KEY: wildlife, permits

Date of Enactment or Last Substantive Amendment: 2008

Authorizing, and Implemented or Interpreted Law: 23-14-18; 23-14-19