RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CH. 51]
Pennsylvania Automated Licensing Service
[36 Pa.B. 7445]
[Saturday, December 9, 2006]The Fish and Boat Commission (Commission) amends Chapter 51 (relating to administrative provisions). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The final-form rulemaking pertains to issuing agents providing licenses and permits through a point-of-sale system, the Pennsylvania Automated Licensing Service (PALS), that is currently under development.
A. Effective Date
The final-form rulemaking will go into effect upon publication of this order in the Pennsylvania Bulletin.
B. Contact Person
For further information on the final-form rulemaking, contact Laurie E. Shepler, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This final-form rulemaking is available on the Commission's website at www.fish.state.pa.us.
C. Statutory Authority
The amendments to §§ 51.32 and 51.36 (relating to resident and nonresident licenses; and lost license certificates) and the addition of §§ 51.37 and 51.38 (relating to application and prerequisites for becoming an issuing agent for the Pennsylvania Automated Licensing Service (PALS); and operation of the issuing agent for the Pennsylvania Automated Licensing Service (PALS)) are published under the statutory authority of section 2711 of the code (relating to issuing agents).
D. Purpose and Background
The final-form rulemaking is designed to improve, clarify and update the Commission's issuing agent regulations and to accommodate the implementation of PALS. The specific purpose of the regulations and amendments is described in more detail under the summary of changes.
E. Summary of Changes
The Commission currently relies on approximately 1,200 issuing agents throughout this Commonwealth to sell and issue approximately 850,000 fishing licenses and 600,000 permits through a paper-based system. In the near future, the Commission will automate the distribution and sale of its licenses and permits through the use of point-of-sale methodologies. To date, over 30 states have automated, or are in the process of automating, their licensing systems. The primary goals of automation are to make delivery of fishing license services more convenient for the license buyers and to provide improved control over the flow of revenues from the issuing agents and to facilitate more effective communications among the license buyer, issuing agent and the Commission.
Upon review of the current regulations regarding the establishment and operations of fishing license issuing agents, the Commission identified the need to make a series of changes and additions that will allow for a more effective and efficient means of establishing issuing agent policies and guidelines for the automated distribution of licenses and permits. Although the Commission will retain the current issuing agent regulations applicable to the issuance of paper licenses and permits, the Commission proposed the addition of §§ 51.37 and 51.38 to govern the issuance of licenses and permits through PALS. The Commission anticipates that paper licenses will remain available as a backup during the transition to PALS.
In addition, the Commission proposed to amend § 51.32 to allow for additional methods to prove residency when purchasing a license. The Commission also proposed to amend § 51.36 to provide a procedure for issuing lost license certificates through PALS.
On final-form rulemaking, the Commission amended § 51.32 so that a Pennsylvania resident hunting license will no longer be accepted as a means of establishing Pennsylvania residency when purchasing a resident fishing license. This change is consistent with the Game Commission's practice of not accepting a Pennsylvania resident fishing license as a means of establishing Pennsylvania residency when purchasing a resident hunting license.
The Commission, on final-form rulemaking, also added language to § 51.38 pertaining to Social Security numbers. Under 23 Pa.C.S. § 4304.1(a)(2) (relating to cooperation of government and nongovernment agencies), government agencies must require the Social Security number of an individual who has one on an application for a recreational license. Therefore, the point-of-sale system will require the collection of an individual's Social Security number at the time of license purchase. The Commission recognizes, however, that there are certain individuals, such as the Amish and non-United States citizens, who may not have one. The new language allows an applicant who claims to not have a Social Security number to complete an affidavit on the form required by the Commission certifying under penalty of law that the applicant does not have a Social Security number and the reason for not having one. If the applicant fails to provide a Social Security number or to sign an affidavit, the issuing agent will not issue the applicant a license.
The Commission added language to § 51.38 that requires issuing agents to ask applicants who indicate that they have no means of establishing that they are residents of this Commonwealth other than by signing an affidavit of Pennsylvania residency to complete the form prescribed by the Commission. If the applicant fails to establish residency by signing the affidavit or as otherwise required in the Commission's regulations, the issuing agent will not issue the applicant a resident license.
In addition, the Commission added language to § 51.38 making it clear that issuing agents may not provide a customer with more than one copy of a license certificate. The Commission also changed the term ''gift vouchers'' to ''vouchers.'' This change is needed to reflect the fact that vouchers may be sold that are not necessarily gifts.
With regard to the remainder of the proposed rulemaking, the Commission adopted the proposed amendment to § 51.36 and the proposed addition of § 51.37 to read as set forth in the proposed rulemaking.
F. Paperwork
The final-form rulemaking creates a new paperwork requirement in that issuing agents will be required to enter into a standard Fishing License Issuing Agent Agreement that governs the point-of-sale system and associated equipment. Current paperwork requirements pertaining to applications for new issuing agents and bonding have not changed.
The final-form rulemaking also creates a new paperwork requirement in that an applicant who claims to not have a Social Security number will be asked to complete an affidavit on the form required by the Commission certifying under penalty of law that the applicant does not have a Social Security number and the reason for not having one. In addition, the final-form rulemaking creates a new paperwork requirement in that applicants who indicate that they have no means of establishing that they are residents of this Commonwealth other than by signing an affidavit of Pennsylvania residency will be asked to complete the form prescribed by the Commission.
G. Fiscal Impact
The final-form rulemaking has no adverse fiscal impact on the Commonwealth or its political subdivisions. However, the Commission will incur costs associated with processing agent applications and with the standard Fishing License Issuing Agent Agreement that PALS agents will be required to sign. For new agents, these costs will be offset by the application fee.
The Commission also will incur costs associated with increased banking fees to the Commission for weekly electronic funds transfers from its issuing agents. These costs will be offset by increased interest earned due to the more timely remittance of license revenues.
Last, the Commission will incur nominal costs associated with developing and printing the affidavit of Pennsylvania residency and the affidavit pertaining to Social Security numbers.
The final-form rulemaking imposes a $150 application fee for new issuing agents under PALS. This fee will only be assessed on new applications for issuing agents and will not be applied to issuing agents that are agents with the Commission at the time that this final-form rulemaking goes into effect. The fee represents an increase in the application fee that new issuing agents are currently charged from $100 to $150. The Commission increased the fee due to inflation and to accommodate the cost of additional staff review of applications for issuing agents under PALS.
H. Public Involvement
Notice of proposed rulemaking was published at 36 Pa.B. 4729 (August 26, 2006). The Commission did not receive any public comments regarding the proposed rulemaking.
Findings
The Commission finds that:
(1) Public notice of intention to adopt the amendments adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided and no comments were received.
(3) The adoption of the amendments of the Commission in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statutes.
Order
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Commission, 58 Pa. Code Chapter 51, are amended by amending § 51.36 and adding § 51.37 to read as set forth in 36 Pa.B. 4729 and amending § 51.32 and adding § 51.38 to read as set forth in Annex A.
(b) The Executive Director will submit this order, Annex A and 36 Pa.B. 4729 to the Office of Attorney General for approval as to legality as required by law.
(c) The Executive Director shall certify this order, Annex A and 36 Pa.B. 4729 and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: Fiscal Note 48A-186 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 51. ADMINISTRATIVE PROVISIONS
Subchapter D. ISSUING AGENTS § 51.32. Resident and nonresident licenses.
(a) Only bona fide residents of this Commonwealth who establish their resident status by producing a Pennsylvania motor vehicle driver's license or other positive means of identification are entitled to one of the various forms of a resident fishing license.
(1) Other positive means of identification for establishing bona fide residence in this Commonwealth include proof of payment of Pennsylvania Personal Income Tax as a resident of this Commonwealth; proof of payment of earned income, personal income tax or per capita taxes showing residence in a Pennsylvania municipality; current Pennsylvania firearms permit; Pennsylvania voter registration card; Pennsylvania nondriver identification card; or a signed affidavit of Pennsylvania residency on the form prescribed by the Commission.
(2) For purposes of this subsection, a bona fide resident of this Commonwealth is a permanent resident who has a fixed intent to return to this Commonwealth when he leaves it and maintains a permanent place of abode here. A person may not be a bona fide resident of this Commonwealth for this purpose while claiming residence in another state for any purpose.
(b) Military personnel who are stationed in this Commonwealth under permanent change of station orders (PCS) for a duration of 6 months or more may qualify as bona fide residents for the purpose of obtaining resident fishing licenses regardless of the fact they may maintain a legal domicile in another state as authorized by the Servicemembers Civil Relief Act (50 U.S.C.A. App. §§ 501--596). Military personnel who are domiciled in this Commonwealth but who are stationed in another state or country qualify as bona fide residents of this Commonwealth for fishing license purposes so long as they do not become domiciles of another state.
(c) A person who does not qualify as a bona fide resident of this Commonwealth under subsection (a) or (b) is considered a nonresident for purposes of obtaining a fishing license.
(d) A Senior Resident Lifetime Fishing License is valid only so long as the holder is a bona fide resident of this Commonwealth. A holder of a Senior Resident Lifetime Fishing License who establishes residence in another state and continues to fish in this Commonwealth without purchasing a Nonresident Fishing License may be charged with violating sections 923(c) and 2703 of the code (relating to additional penalty for fishing without license; and possession and display of licenses).
§ 51.38. Operation of the issuing agent for the Pennsylvania Automated Licensing Service (PALS).
(a) Sale of licenses.
(1) Issuing agents shall collect the required customer information, including Social Security numbers, at the time of purchase and ensure that the fishing license is accurate, correct and fully completed. The applicant shall verify the information provided to the issuing agent and entered into the PALS is accurate and correct and sign his own name or place his mark in the place indicated on the face of the license certificate. A license is not valid unless it is signed by the applicant. If an applicant indicates to the issuing agent that he does not have a Social Security number, the issuing agent shall ask the applicant to complete an affidavit on the form prescribed by the Commission certifying under penalty of law that the applicant does not have a Social Security number and the reason therefor. Upon completion and execution of the form by the applicant, the issuing agent may issue the license to the applicant. Issuing agents shall deny the issuance of a license to an applicant who fails to provide his Social Security number or who fails to sign an affidavit as required by this paragraph. Issuing agents shall retain the affidavits and submit them to the Commission at least once a month or in another manner prescribed by the Commission.
(2) Issuing agents shall verify the eligibility of the applicant for the class of license indicated on the license in accordance with § 51.32 (relating to resident and nonresident licenses). If an applicant for a resident license indicates that he is unable to establish that he is a resident of this Commonwealth by any of the means identified in § 51.32 other than by signing an affidavit of Pennsylvania residency, the issuing agent shall ask the applicant to complete the form prescribed by the Commission certifying under penalty of law that the applicant is a bona fide resident of this Commonwealth. Issuing agents shall deny the issuance of a resident license to an applicant who fails to establish his residency by signing the form or as otherwise provided in § 51.32. Issuing agents shall retain the affidavits of Pennsylvania residency and submit them to the Commission at least once a month or in another manner prescribed by the Commission.
(3) Issuing agents shall transfer the information provided by the applicant to the PALS and ensure that the PALS is otherwise operational and prints the license certificate legibly. Issuing agents may not provide a customer with more than one copy of a license certificate issued under PALS.
(4) Issuing agents shall provide a Summary of Fishing Regulations and Laws with each license issued. Issuing agents also shall provide a copy of the summary book to any holder of a Senior Resident Lifetime Fishing License who requests one. Issuing agents are encouraged to provide a copy of the summary book, if adequate numbers are available, to other individuals who request one.
(5) Issuing agents shall make available licenses and permits for sale to the public in strict accordance with all policies, instructions, rules and regulations of the Commission.
(6) Issuing agents and their employees may not provide false or misleading information on a license. The date reported on a license sold shall be the date of the actual sale.
(7) Issuing agents shall keep customer information confidential and not use, release or permit the use of this information for any purpose not specifically authorized by the Commission or applicable law.
(8) Issuing agents shall return all original voided licenses to the Commission within 15 days of their issuance. Issuing agents shall pay the license fees for voided licenses that are not returned to the Commission within 15 days of issuance.
(9) Issuing agents shall return all documents designated by the Commission within the time frame specified by the Commission.
(10) Issuing agents shall maintain, as instructed by the Commission, displays, notices or other informational materials relating to licenses and permits provided by the Commission, distribute to customers and fishing guides other compliance or educational materials provided by the Commission and promote and market new products or privileges as required by the Commission.
(11) Issuing agents shall sell licenses and permits only at the business location specified in their application or approved by the Commission and at a place on the premises accessible to the public.
(12) Issuing agents may not offer or provide licenses or permits free of charge or for any fee not authorized by section 2715 of the code (relating to license, permit and issuing agent fees).
(13) Issuing agents shall redeem a license or permit voucher regardless of where the voucher was purchased.
(b) PALS equipment.
(1) Issuing agents shall ensure proper use of the PALS equipment and follow the PALS operating manual and subsequent amendments and revisions thereto.
(2) An issuing agent may not borrow, lend or otherwise transfer PALS equipment or supplies to another agent without the prior written consent of the Commission.
(3) Issuing agents shall safeguard PALS equipment and supplies from unauthorized, wasteful, inappropriate or fraudulent use. Issuing agents shall place the equipment and supplies in a secure location. Issuing agents shall use license paper stock only for purposes of printing licenses, permits, reports and receipts. Issuing agents shall promptly notify the Commission or its designee of equipment malfunction. PALS equipment and supplies are not transferable to other locations without the prior written consent of the Commission. Issuing agents shall return the defective equipment immediately to the repair center identified by the Commission.
(4) Issuing agents shall notify the Commission by telephone within 48 hours and submit a written report within 10 days after any fire, theft or natural disaster affecting PALS equipment and supplies or records.
(5) Issuing agents shall be responsible for the PALS equipment and the supplies relating to the issuance of licenses and permits, except for events beyond their control, and they shall assume financial responsibility for any damage to the PALS equipment resulting from negligence, malicious activity, abandonment, failure to return upon request of the Commission or improper electrical service to the equipment.
(6) Issuing agents shall carry appropriate insurance covering PALS equipment and supplies in an amount determined by the Commission. Issuing agents shall provide proof of insurance coverage upon the request of the Commission.
(c) Access and auditing.
(1) Issuing agents, their employees and subcontractors shall allow the Commission or other authorized representatives access to periodically inspect, review or audit PALS associated records, reports, canceled checks and similar material pertaining to PALS. Issuing agents shall maintain these records for 5 years.
(2) Issuing agents shall allow the Commission access to all materials and equipment related to the PALS operations. Issuing agents shall allow access to the Commission to make inspections during reasonable business hours, with or without notice to the issuing agent, to determine whether the issuing agent is in compliance with this section.
(d) Financial provisions.
(1) Issuing agents shall deposit the money received from the sale of licenses and permits in a designated bank account less the amount retained as an issuing agent fee under section 2715 of the code.
(2) Issuing agents shall have sufficient funds available in the designated bank account at the time of the electronic funds transfers. Upon notification of insufficient funds for payment to the Commission, the Commission may immediately and without notice suspend an issuing agent's authority to issue licenses and permits, may assess an administrative fee in accordance with section 502 of the code (relating to collection fee for uncollectible checks) and may require the issuing agent to increase the amount of the bond or other security or to provide adequate bank account overdraft protection.
(3) Issuing agents shall provide written notification on the form prescribed by the Commission at least 15 days prior to changing banks, account numbers, ownership status, business status or other information used by the Commission or its designee for the purpose of collecting moneys owed by the issuing agent.
(e) Suspension or recall of agency.
(1) The Commission may suspend the issuing agency of any agent that no longer meets the Commission's criteria for acceptance for participation in PALS until the agent becomes compliant.
(2) The Commission may recall the issuing agency of any agent that violates the requirements of this section.
[Pa.B. Doc. No. 06-2407. Filed for public inspection December 8, 2006, 9:00 a.m.]
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