No. 32929 (Amendment): Rule R657-50. Error Remedy

(Amendment)

DAR File No.: 32929
Filed: 09/01/2009 05:06:44 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 administrative rules.

Summary of the rule or change:

The modifications to this rule provide: 1) for the restoration of bonus or preference points if an error is determined to be caused by the Division; 2) allow computer service and internet providers to be included as possible contributors to an error; 3) allow for the restoration of bonus or preference points if an error is determined to be caused by a third party; 4) allow the Division to mitigate applicant errors provided the applicant can provide satisfactory proof to the Division that an error did occur that was a mistake on the part of the applicant; and 5) set time constraints for filing an error remedy request.

State statutory or constitutional authorization for this rule:

• Section 23-14-19
• Section 23-19-38
• Section 23-19-1

Anticipated cost or savings to:

the state budget:

Since this amendment is only a process clarification, the Division of Wildlife Resources (DWR) determines that this does not create a cost or savings impact to the state budget or DWR's budget.

local governments:

This amendment is outlining a process clarification. This rule 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:

The rule does not impose any additional requirements on other persons, nor generate a cost or savings impact to small businesses, because this correction is only clerical in nature.

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

The rule does not impose any additional requirements on other persons, nor generate a cost or savings impact to other persons, because this correction is only clerical in nature.

Compliance costs for affected persons:

Since this amendment is only a process clarification, DWR determines that there are no additional compliance costs associated with this amendment.

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:

10/15/2009

This rule may become effective on:

10/22/2009

Authorized by:

James Karpowitz, Director

RULE TEXT

R657. Natural Resources, Wildlife Resources.

R657-50. Error Remedy.

R657-50-1. Purpose and Authority.

(1) Under the authority of Sections 23-14-19, 23-19-1, and 23-19-38 this rule is established to provide guidelines for identifying and resolving errors[resulting in the]involving:

(a) rejection of a wildlife document application;

(b) denial of a wildlife document;[or]

(c) incorrect issuance of a wildlife document ;

(d) applying for or receiving a wildlife document;

(e) eligibility to apply for or receive a wildlife document; or

(f) loss or forfeiture of bonus points.

(2) This rule provides standards and procedures in the identification and resolution of division errors, third party errors and [petitioner]applicant errors.

(3) Nothing in this Section shall be construed, however, as authorizing the Division to remedy or otherwise alter wildlife document ineligibility resulting from a judicial or administrative order suspending wildlife document privileges.

R657-50-2. Policy.

(1)(a) The division receives hundreds of thousands of applications and issues tens of thousands of wildlife documents each year through a variety of distribution methods, including:

(i) drawings;

(ii) over-the-counter sales;

(iii) license agent sales; and

(iv) online sales.

(b) The application procedures and eligibility requirements for wildlife documents are set forth in Utah Code, Title 23, and Utah Administrative Code Rules, Title R657.

(c) The public must comply with the procedures and requirements set forth in the statutes and rules identified in Subsection (1)(b).

(d) The division recognizes, however, that errors may be made by the division [in]and other parties in eligibility, requesting, processing and issuing wildlife documents , including forfeiture of bonus points. Therefore, procedures are needed for evaluation, identification and resolution of errors.

(2)(a) The division may notify petitioners of rejection status for wildlife document applications completed incorrectly as provided under the applicable application correction procedures set forth in the respective statutes and rules identified in Subsection (1)(b).

(b) The division may use the data on file to correct rejection status applications. Ultimately, however, it is the responsibility of the [petitioner]applicant to provide all necessary information as required on the application.

(3)(a) Consistent with the requirements in this rule, T[t]the division may [mitigate division and]mitigate division, third party , and applicant errors when issuing wildlife documents or determining bonus points by:

(i) extending a deadline;

(ii) issuing a refund [on an erroneously collected fee]consistent with Sections 23-19-38 and 23-19-38.2;

(iii) issuing the correct wildlife document;[or]

(iv) authorizing an incorrectly issued wildlife document[.];

(v) restoring forfeited bonus or preference points; or

(vi) accepting the surrender of a wildlife document and restoring applicable bonus or preference points as authorized in R657-42-4.

(b) Any mitigation efforts shall be subject to the division's determination that the [petitioner]applicant shall not receive an unfair benefit from the mitigation.

(c) The division may not mitigate errors caused in whole or part by the [petitioner]applicant's knowing and willful violation of statute, rule or proclamation.

(d) This rule applies only to errors adversely effecting [a petitioner]an applicant that cannot be remedied through compliance with existing processes and procedures set in statute, rule or proclamation.

(e) The division may refund any fee collected in error.

R657-50-3. Definitions.

(1) Terms used in this rule are defined in Section 23-13-2, and the applicable rules as provided in Section R657-50-1(b).

(2) In addition:

(a)[(i) "Division error" means the division or one of its license agents erroneously:] "Applicant" means the person directly impacted by an error adversely affecting the opportunity to obtain or use a wildlife document.

(b)(i) "Applicant error" means the applicant inadvertently or negligently fails to comply with the procedures and requirements to become eligible for, apply for, or obtain a wildlife document.

(ii) "Applicant error" includes the negligent acts and omissions committed by an individual or entity acting in the applicant's behalf.

(iii) "Applicant error" does not include knowing and willful noncompliance with division procedures and requirements by the applicant or any individual or entity acting in his or her behalf.

(c) "Application" means a request made by the applicant to receive a wildlife document whether through a drawing, license agent, division employee, or online application.

(d)(i) "Division error" means the division or its agent:

(A) provides erroneous information to the [petitioner]applicant, which the [petitioner relied]applicant relies upon to [their]his or her detriment in obtaining, or attempting to obtain a wildlife document;

(B) fails to provide information to the applicant required by law, policy, practice, or circumstance that directly leads to the applicant's ineligibility, inability, or failure to apply for or receive a wildlife document;

(C) erroneously rejects a properly completed and accurate wildlife document application;

([C]D) incorrectly issues a wildlife document;[or]

([D]E) incorrectly denies issuing a wildlife document ; or

(F) experiences a computer, online, or other electronic systems failure that prevents an applicant from applying for or obtaining a wildlife document.

(ii) "Division error" does not include any error made by the division or its agents acting in reliance upon inaccurate or false information provided by the [petitioner]applicant or any other individual acting in the [petitioner]applicant's behalf.

([b]e) "Error Committee" means a committee established by the Director consisting of the Wildlife Chief, Administrative Services Chief, Licensing Coordinator, and Rules Coordinator, or their designees.

([c]f) "Landowner association operator" for purposes of this rule, means:

(i) a landowner association or any of its members eligible to receive limited entry landowner permits as provided in Rule R657-43; or

(ii) Cooperative Wildlife Management Unit (CWMU) landowner association or its designated operator as provided in Rule R657-37.

([d]g) "Landowner association operator error" means a landowner association operator whose error or mistake results in an incorrect voucher redemption.

[(e) "Petitioner" means the person directly impacted by an error adversely effecting the opportunity to obtain or use a wildlife document.

(f) "Petitioner error" means the petitioner did not comply with the procedures and requirements to apply for or obtain a wildlife document. Petitioner error includes errors made by a person acting on the petitioner's behalf.

] ([g]h) "Rejection status" means the application will not be considered for a wildlife document due to:

(i) [a petitioner]an applicant error on the application;

(ii) the application lacking required information; or

(iii) the [petitioner]applicant does not meet a specific requirement.

([h]i) "Third party error" means the [petitioner]applicant is prepared and capable of or has satisfied the procedures and requirements for obtaining a wildlife document, but the opportunity is lost due to an error by computer service, internet provider, mail carrier services or financial institutions.

([i]j) "Voucher" means a document issued by the division to a landowner association member or landowner association operator, to designate who may purchase a CWMU big game hunting permit or a limited entry landowner permit from a division office.

([j]k) "Wildlife document" means any license, permit, tag, or certificate of registration issued by the division.

R657-50-4. Division Error Procedures.

(1) A division error, which results in the rejection or incorrect processing of an application to obtain a wildlife document through a drawing, may be handled as provided in Subsections (a) through (d).

(a) If the drawing has not been held, the division may extend the application deadline and evaluate the application as though filed timely.

(b) If the drawing is over and the wildlife document applied for is available, the division may issue the wildlife document.

(c) If the drawing is over and the wildlife document applied for is not available, the division must follow the procedures set forth in Subsection ([6]7).

(d) If an application is for one or more persons applying as a group, the division may treat the remaining members of the group the same as the [petitioner]applicant.

(2) A division error, which results in an application denial for wildlife documents other than those issued through a drawing, may be resolved by extending the application deadline and evaluating the application as though filed timely.

(3) A division error, which results in an impermissible surrender or exchange of a wildlife document may be resolved by extending the deadline necessary to validate the surrender or exchange, provided:

(a) the [petitioner]applicant has not participated in the activity authorized by the surrendered wildlife document; and

(b) the [petitioner]applicant shall be substantially prejudiced if relief under this section is not granted.

(4) A division error, which results in the improper denial of a wildlife document, may be resolved as provided in Subsections (a) through (b).

(a) If the wildlife document erroneously denied is available, the division may issue the wildlife document.

(b) If the wildlife document erroneously denied is not available, the division must follow the procedures set forth in Subsection ([6]7).

(5) A division error, which results in the erroneous issuance of a wildlife document may be resolved as provided in Subsections (a) through (b).

(a) If the wildlife document requested by the [petitioner]applicant prior to or at the time of the error is currently available, the division may issue the wildlife document.

(b) If the wildlife document requested by the [petitioner]applicant prior to or at the time of the error is currently not available, the division must follow the procedures set forth in Subsection ([6]7).

(6) A division error, which directly results in the applicant's loss of bonus points or the imposition of a waiting period, may be resolved by restoring part or all of the bonus points and removing the waiting period.

([6]7) Procedures for issuing wildlife documents otherwise unavailable for distribution are as follows:

(a) If the [petitioner]applicant would have received a wildlife document absent an error, or if the [petitioner]applicant received a wildlife document because of an error, the division shall determine if an additional wildlife document beyond the applicable quota may be issued without detriment to the particular wildlife species in a specific hunt area.

(i) If issuing the additional wildlife document is not detrimental to the species in the hunt area, the division may issue the wildlife document, except as provided in Subsection (A).

(A) Only the Wildlife Board may approve issuing an additional permit for a once-in-a-lifetime hunt.

(B) Additional CWMU permits may not be issued.

(ii) If a wildlife document cannot be issued, the [petitioner]applicant may be placed at the top of the alternate drawing list.

(iii) If a wildlife document is not issued under Subsection (i) or (ii), the division may issue a bonus point or preference point, whichever is applicable.

(iv) If a bonus point or preference point does not apply, the division may issue a refund of the wildlife document and handling fee.

(b) If the [petitioner]applicant would not have received a wildlife document in a drawing, absent an error, the division may issue a bonus point or preference point, where applicable.

(c) If the wildlife document was applied for through a division drawing and the hunting season for that wildlife document is over, the division may:

(i) issue a bonus point or preference point for which the application was submitted, where applicable; or

(ii) issue a refund of the wildlife document and handling fee where bonus points or preference points do not apply.

R657-50-5. Third Party Errors.

(1) The division shall not be held responsible for third party errors, including those of a computer service, internet provider, financial institution or postal service, however, the division may mitigate a third party error as provided under this section.

(2)(a) The [petitioner]applicant must:

(i) provide proof to the satisfaction of the division that the error was due to a third party; and

(ii) provide written documentation from the third party verifying the error.

[(b) If the petitioner cannot prove to the satisfaction of the division that the error was due to a third party, no mitigating action will be taken.

] (3) Third party errors which result in [the]failure to apply, rejection , or incorrect processing of an application to obtain a wildlife document through a drawing [shall]may be handled as provided in Subsections (a) through (c).

(a) If the error is [found]brought to the division's attention prior to the drawing and there is sufficient time to complete the processing of the application before the drawing for which the application was submitted, the application [shall]may be included in the drawing as though filed timely.

(b) If the error is [found]brought to the division's attention after the drawing or there is not sufficient time to complete the processing of the application before the drawing, and the [petitioner]applicant's application is rejected because of the error, or the [petitioner]applicant otherwise fails to obtain the wildlife document applied for, the division may issue a bonus point or preference point for the hunt applied for, where applicable.

(c) A refund of handling fees shall not be made for third party errors.

(4) A third party error, which results in [a rejected]failure to apply, rejection, or incorrect processing of an application for a wildlife document issued outside [of a]the drawing process, may be handled by extending the application deadline and evaluating the application as though filed timely.

(5) An application deadline extension under this section may not be granted unless the applicant pays the prescribed application late fee.

([5]6) If an application is for one or more persons applying as a group, the division may treat the remaining members of the group the same as the [petitioner]applicant.

(7) A third party error, which directly results in the applicant's loss of bonus points or the imposition of a waiting period, may be resolved by restoring part or all of the bonus points and removing the waiting period.

R657-50-6. Landowner Association Operator Errors.

(1)(a) The division shall not be held responsible for landowner association operator errors, however, the division may mitigate a landowner association operator error as provided under this section.

(b) The [petitioner]applicant must provide proof to the satisfaction of the division that the error was due to a landowner association operator.

(c) If the [petitioner]applicant cannot prove to the satisfaction of the division that the error was due to a landowner association operator, the division will take no mitigating action.

(2) A landowner association operator error, which results in the incorrect processing of a voucher to obtain a wildlife document, [shall]may be mitigated as provided in Rule R657-42-11(3).

R657-50-7. [ Petitioner ] Applicant Errors.

[A petitioner error will not be corrected, except as provided in the applicable proclamations and rules under the Utah Administrative Code, Title R657.](1) The division shall not be held responsible for applicant errors. However, the division may mitigate an applicant error as provided under this section.

(2)(a) The applicant must:

(i) provide proof to the satisfaction of the division that the error was due to a negligent act or omission of the applicant or a person or entity acting in the applicant's behalf; and

(ii) provide written documentation from the person or entity, where applicable, acknowledging and verifying the error.

(3) Applicant errors which result in failure to apply, rejection, or incorrect processing of an application for a wildlife document through a drawing may be handled as provided in Subsections (a) and (b).

(a) If the error is brought to the division's attention prior to the drawing and there is sufficient time to complete the processing of the application before the drawing for which the application was submitted, the application may be included in the drawing as though filed timely.

(b) If the error is brought to the division's attention after the drawing or there is not sufficient time to complete the processing of the application before the drawing, and the applicant's application is rejected because of the error, or the applicant otherwise fails to obtain the wildlife document applied for, the division may issue a bonus point or preference point for the hunt applied for, where applicable.

(4) An applicant error, which results in failure to apply, rejection, or incorrect processing of an application for a wildlife document issued outside the drawing process, may be handled by extending the application deadline and evaluating the application as though filed timely.

(5) An application deadline extension under this section may not be granted unless the applicant pays the prescribed application late fee.

(6) If an application is for one or more persons applying as a group, the division may treat the remaining members of the group the same as the applicant.

(7) An applicant error which directly results in the applicant's failure to earn a bonus point, loss or forfeiture of bonus points or the imposition of a waiting period, may be resolved by restoring part or all of the bonus points and removing the waiting period, provided the request for relief is submitted to the division within 180 days of the deadline for filing an application that resulted in failing to earn or forfeiting a bonus point or the imposition of a waiting period.

KEY: wildlife, permits

Date of Enactment or Last Substantive Amendment: [ August 3, 2004 ] 2009

Notice of Continuation: April 4, 2007

Authorizing, and Implemented or Interpreted Law: 23-14-19; 23-19-1; 23-19-38

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