PROPOSED RULEMAKING
GAME COMMISSION
[58 PA. CODE CH. 135]
Lands and Buildings; General Provisions
[53 Pa.B. 7022]
[Saturday, November 11, 2023]To effectively manage the wildlife resources of this Commonwealth, the Game Commission (Commission) proposed at its September 16, 2023, meeting to amend § 135.2 (relating to unlawful actions) to prohibit a person from using or possessing a controlled substance or drug paraphernalia on Hunter Access Program (HAP) properties.
This proposed rulemaking will not have an adverse impact on the wildlife resources of this Commonwealth.
The authority for this proposed rulemaking is 34 Pa.C.S. (relating to Game and Wildlife Code) (code).
This proposed rulemaking was made public at the September 16, 2023, meeting of the Commission. Comments can be sent until January 24, 2024, to the Director, Information and Education, Game Commission, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797.
1. Purpose and Authority
State Game Wardens (SGW) and Deputy State Game Wardens (DSGW) are encountering an increasing number of individuals who are in possession of controlled substances and/or drug paraphernalia on State game lands and HAP properties. The Commission is proposing to amend § 135.2 to prohibit a person from using or possessing a controlled substance and/or drug paraphernalia on HAP properties. The text of sections 721(b) and 925(b)(9) of the code (relating to control of property; and jurisdiction and penalties) would set the grading for the proposed regulatory usage violation as a summary offense of the fifth degree carrying a potential fine penalty of $100—$200.
State game lands are comprised of approximately 1.5 million acres of lands and waters located within this Commonwealth that are owned by the Commission and predominantly used to create and maintain game and wildlife habitat and areas for the public to access hunting and furtaking opportunities. Conversely, HAP properties are comprised of approximately 1.7 million acres of lands and waters located within this Commonwealth that are privately owned, but where certain hunting and trapping rights have been conveyed to the Commission pursuant to written agreement under sections 709 and 729 of the code (relating to cooperative agreements relating to land; and public access projects).
The Commission controls authorized usage of State game lands and HAP properties under the authority of section 721(a) of the code. Section 721(a) states ''[t]he administration of all lands or waters owned, leased or otherwise controlled by the commission shall be under the sole control of the director, and the commission shall promulgate regulations consistent with the purpose of this title for its use and protection as necessary to properly manage these lands or waters.'' The Commission has further promulgated regulations for State game lands only under § 135.41 (relating to State game lands). The Commission has also further promulgated regulations for both State game lands and HAP properties under § 135.2.
Section 135.41(c)(10) currently states it is unlawful to ''[u]se or possess any controlled substance or drug paraphernalia'' as defined or classified under The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. §§ 780-101—780-143).'' However, as previously identified, this usage violation only applies to lands and waters designated as State game lands. Furthermore, there is no similar provision located within § 135.2 that is applicable to HAP properties. The absence of a similar provision creates two limitations for the Commission.
The first limitation concerns the absence of a charging alternative to minor controlled substance or drug paraphernalia violations under The Controlled Substance, Drug, Device and Cosmetic Act that occur on HAP properties. For example, a SGW who identifies a person to be in possession of a controlled substance or drug paraphernalia on State game lands currently has the discretion to charge the more serious misdemeanor graded offense under The Controlled Substance, Drug, Device and Cosmetic Act or, in the alternative, the less serious summary graded usage offense under § 135.41(c)(10). A SGW or prosecuting attorney similarly has this lesser charging alternative available for plea discussion in pending Controlled Substance, Drug, Device and Cosmetic Act cases that occurred on State game lands. The Commission has determined that a similarly structured progressive grading alternative structure would be a valuable tool in disposing of the multitude of different controlled substance and drug paraphernalia violations occurring on HAP properties.
The second limitation concerns the comparatively lesser authority of a DSGW as compared to an SGW. An SGW who identifies a person to be in possession of a controlled substance or drug paraphernalia on HAP property currently has the authority to directly enforce The Controlled Substance, Drug, Device and Cosmetic Act under the authority of section 901(a)(17) of the code (relating to powers and duties of enforcement officers). Section 901(a)(17) states ''[a]ny officer whose duty it is to enforce this title or any officer investigating any alleged violation of this title shall have the power and duty to. . .apprehend or arrest any individual suspected of violating any provision of Title 18 (relating to crimes and offenses) or any other offense classified as a misdemeanor or felony.'' (Emphasis added.) Offenses under The Controlled Substance, Drug, Device and Cosmetic Act are graded as either misdemeanors or felonies, therefore an SGW's authority includes enforcement of this act. However, under the text of section 902(a) of the code (relating to deputy Game Commission officers) that explicitly bars the extension of section 901(a)(17) to DSGWs, these officers are consequently not authorized to enforce The Controlled Substance, Drug, Device and Cosmetic Act directly.
Without an applicable regulation like § 135.41(c)(10) to address controlled substances and drug paraphernalia violations on HAP properties, DSGWs must request assistance from an SGW, a local police department or State Police to address the violation outside of their direct authority. When these options are not available in a timely fashion, these violations will often go unaddressed. The addition of the proposed text to § 135.2 would create a usage violation for persons found in possession of a controlled substance or drug paraphernalia that will be directly enforceable by both SGWs and DSGWs. This will consequently improve the efficiency of the enforcement operations of the Commission by reducing the necessity of alternate personnel to be called upon to attend to minor controlled substance and drug paraphernalia offenses occurring on HAP properties.
Section 721(a) of the code provides ''[t]he administration of all lands and waters owned, leased or otherwise controlled by the commission shall be under the sole control of the Director, and the commission shall promulgate regulations. . .for its use and protection as necessary to properly manage these lands or waters.'' The amendments to § 135.2 are proposed under this authority.
2. Regulatory Requirements
This proposed rulemaking will amend § 135.2 to prohibit any person from using or possessing a controlled substance and/or drug paraphernalia on HAP properties.
3. Persons Affected
Persons concerned with the possession of controlled substances or drug paraphernalia on HAP properties within this Commonwealth will be affected by this proposed rulemaking.
4. Cost and Paperwork Requirements
This proposed rulemaking should not result in any additional cost or paperwork.
5. Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin and will remain in effect until changed by the Commission.
6. Contact Person
For further information about this proposed rulemaking, contact Jason L. DeCoskey, Director, Bureau of Wildlife Protection, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, (717) 783-6526.
BRYAN J. BURHANS,
Executive DirectorFiscal Note: 48-503. No fiscal impact; recommends adoption.
Annex A
TITLE 58. RECREATION
PART III. GAME COMMISSION
CHAPTER 135. LANDS AND BUILDINGS
Subchapter A. GENERAL PROVISIONS § 135.2. Unlawful actions.
In addition to the prohibitions in the act on lands, waters or buildings under Commission ownership, lease, agreement, control or jurisdiction, it is unlawful, except with the permission of the person in charge of the lands, or the written permission of the Director to:
(1) Camp or use campsites.
(2) Plant, gather, cut, dig, remove or otherwise injure plants or parts thereof, including trees, shrubs, vines, flowering plants, cultivated crops, mushrooms and fruits of berry-producing plants.
(3) Travel on lands by means of vehicle or conveyance propelled by motorized power. This provision is not intended to restrict travel by certain devices used for persons with mobility disabilities as specifically authorized under Subchapter C (relating to State game lands).
(4) Swim in a dam, pond, lake or stream.
(5) Injure, destroy or cause damage to property—real, personal or mixed.
(6) Remove or attempt to remove any manmade or natural object except wildlife and fish lawfully taken. Objects which may not be removed include animals, rocks, minerals, sand and historical or archaeological artifacts.
(7) Participate in, become a part of, contribute to or engage in disorderly conduct as defined in 18 Pa.C.S. §§ 5503 and 5505 (relating to disorderly conduct; and public drunkenness).
(8) Kindle, use or maintain an open fire.
(9) Travel on roads open to vehicular travel with vehicle or conveyance propelled by motorized power which is not licensed or authorized for operation on a public highway under 75 Pa.C.S. (relating to the Vehicle Code).
(10) Violate, fail or neglect to follow instructions posted on signs authorized by the Director.
(11) Travel by mechanical or motorized conveyance or ride animals on newly constructed, seeded or planted roads, or other areas, when posted against the travel.
(12) Possess, maintain, operate, occupy or travel by snowmobile or ATV in a manner not in accordance with the standards in 75 Pa.C.S. Chapter 77 (relating to Snowmobile and All-Terrain Vehicle Law).
(13) Construct, place, maintain, occupy, use, leave or abandon structures or other tangible property, except in the manner otherwise authorized and limited by § 135.41(c)(11) (relating to State game lands).
(14) Use or possess a controlled substance and/or drug paraphernalia as defined or classified under The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. §§ 780-101—780-144).
[Pa.B. Doc. No. 23-1545. Filed for public inspection November 10, 2023, 9:00 a.m.]
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