RULES AND REGULATIONS
Title 58—RECREATION
GAME COMMISSION
[58 PA. CODE CH. 135]
Lands and Buildings; General Provisions
[54 Pa.B. 1316]
[Saturday, March 16, 2024]To effectively manage the wildlife resources of this Commonwealth, the Game Commission (Commission) at its January 27, 2024, meeting amends § 135.2 (relating to unlawful actions) to prohibit any person from using or possessing a controlled substance or drug paraphernalia on Hunter Access Program (HAP) properties.
This final-form rulemaking will not have an adverse impact on the wildlife resources of this Commonwealth.
The authority for this final-form rulemaking is 34 Pa.C.S. (relating to Game and Wildlife Code) (code).
Notice of proposed rulemaking was published at 53 Pa.B. 7022 (November 11, 2023).
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 or drug paraphernalia on State game lands and HAP properties. The Commission amends § 135.2 to prohibit any person from using or possessing a controlled substance 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) set the grading for this regulatory usage violation as a summary offense of the fifth degree carrying a potential fine or 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 pursuant to 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 that 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 under § 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, any 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). Any 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 DSGW as compared to SGW. Any 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 pursuant to the authority of section 901(a)(17) of the code (relating to powers and duties of enforcement officers). Section 901(a) 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. . .'' and 901(a)(17) states ''. . .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, any SGW's authority includes enforcement of the act. However, under the text of section 902 of the code (relating to deputy Game Commission officers), which explicitly bars the extension of section 901(a)(17) to a DSGW, these officers are not authorized to directly enforce The Controlled Substance, Drug, Device and Cosmetic Act.
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 Pennsylvania 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 amendment of § 135.2 creates 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 that ''[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 adopted under this authority.
2. Regulatory Requirements
This final-form rulemaking amends § 135.2 to prohibit any person from using or possessing a controlled substance 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 final-form rulemaking.
4. Comment and Response Summary
There were no official comments received on this final-form rulemaking.
5. Cost and Paperwork Requirements
This final-form rulemaking will not result in any additional cost or paperwork.
6. Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin and will remain in effect until changed by the Commission.
7. Contact Person
For further information about this final-form rulemaking, contact Jason L. DeCoskey, Director, Bureau of Wildlife Protection, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, (717) 783-6526.
Findings
The Commission finds that:
(1) Public notice of intention to adopt the administrative 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), referred to as the Commonwealth Documents Law, and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) The adoption of the amendments of the Commission in the manner provided in this order is necessary and appropriate for the administration and enforcement of the authorizing statute.
Order
The Commission, acting under authorizing statute, orders that:
(a) The regulations of the Commission, 58 Pa. Code Chapter 135, are amended by amending § 135.2 to read as set forth in Annex A.
(b) The Executive Director of the Commission shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(c) This order shall become effective upon publication in the Pennsylvania Bulletin.
BRYAN J. BURHANS,
Executive DirectorFiscal Note: Fiscal Note 48-503 remains valid for the final adoption of the subject regulation.
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 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. 24-337. Filed for public inspection March 15, 2024, 9:00 a.m.]
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