PROPOSED RULEMAKING
GAME COMMISSION
[58 PA. CODE CHS. 131, 137 AND 139]
Crossbows; Replacement Costs; and Elk
[31 Pa.B. 1746] To effectively manage the wildlife resources of this Commonwealth, the Game Commission (Commission) at its January 23, 2001, meeting, proposed the following amendments:
Amend § 131.2 (relating to definitions) by defining a crossbow, § 131.4 (relating to civil liability for wildlife killed) by making an editorial change to correct the reference to 34 Pa.C.S. § 2307(e) (relating to unlawful taking or possession of game or wildlife), and adding § 131.8 (relating to replacement costs for wildlife killed) to establish replacement costs as provided in 34 Pa.C.S. § 925(i) (relating to jurisdiction and penalties).
Add § 137.33 (relating to protection of elk) to protect animals which cannot be killed until every reasonable effort is made to live trap and transfer the animals.
Amend § 139.2 (relating to definitions) to facilitate the harvest of additional antlerless deer.
These proposed amendments will have no adverse impact on the wildlife resources of this Commonwealth.
The authority for these proposals is 34 Pa.C.S. (relating to the Game and Wildlife Code) (code).
These proposals were made public at the January 23, 2001, meeting of the Commission. Comments on these proposals can be sent to the Executive Director, Game Commission, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, until April 6, 2001.
Proposed Amendment to § 131.2.
1. Introduction
The act of December 20, 2000 (P. L. 452, No. 111) (Act 111) removed the crossbow from the list of unlawful hunting devices contained in section 2308 of the code (relating to unlawful devices and methods). To adopt regulations relating to the use of crossbows to hunt, it is first necessary to define ''crossbow.'' The Commission at its meeting held on January 23, 2001, therefore, proposed adding a definition of ''crossbow'' to § 131.2. This proposal is being made under the authority contained in the code.
2. Purpose and Authority
Act 111 gives the Commission the authority to allow the use of crossbows to hunt in this Commonwealth. To regulate their use however, what constitutes a crossbow must be established. The proposed addition will accomplish that purpose.
Section 2102(a) of the code (relating to regulations) directs the Commission to ''. . . promulgate such regulations as it deems necessary and appropriate concerning . . . the ways, manner, methods and means of hunting or furtaking . . .'' Section 2102(d) of the code also directs the Commission to promulgate regulations stipulating ''. . . the type of firearms and ammunition and other devices which may be used . . .'' The amendment will be adopted under this authority.
3. Regulatory Requirements
The amendment merely defines the term ''crossbow.''
4. Persons Affected
Individuals wishing to hunt using a crossbow will be affected by the proposal.
Proposed Amendment to § 131.4
1. Introduction
When section 2307 of the code was changed by the act of December 21, 1998 (P. L. 1274, No. 166), the penalty section was changed from subsection (d) to subsection (e). Section 131.4(a) was never changed to reflect this amendment. At its meeting held on January 23, 2001, the Commission proposed amending § 131.4(a) to refer to section 2307(e) of the code, rather than section 2307(d) of the code. The change is being proposed under section 2102 of the code.
2. Purpose and Authority
The proposed change is essentially an editorial change resulting from the addition of a subsection to section 2307 of the code. Changing the subsection will have the regulation correctly refer to the penalty provisions of that section. This proposal is being made under section 2102 of the code which provides that: ''The commission shall promulgate such regulations as it deems necessary and appropriate concerning game or wildlife . . .''
3. Regulatory Requirements
The amendment is an editorial change.
4. Persons Affected
Since the proposed change is editorial, it will not affect anyone not affected by the original regulation.
Proposed Addition of § 131.8
1. Introduction
To more effectively manage the game and wildlife of this Commonwealth, the Commission at its January 23, 2001, meeting proposed adding § 131.8. Section 925(i) of code provides for the payment of replacement costs in addition to fines and costs ''. . . as is fixed by regulation of the commission.'' This section provides the authority for the proposed addition.
2. Purpose and Authority
The Commission has expended and continues to expend a great deal of money and resources in encouraging the increase of endangered and threatened and other critical species. The unlawful possessing, killing and taking of these species tends to frustrate the purpose of these expenditures. The proposed addition will discourage unlawful possession and killing and compensate the Commission for its investment in these species.
As was pointed out in the Introduction, section 925(i) of the code specifically authorizes the Commission to fix by regulation replacement costs for unlawfully killed species. In addition, section 2102 of the code directs the Commission to promulgate ''. . . such regulations as it deems necessary and appropriate concerning game or wildlife . . .'' Both of these sections provide the authority for the proposed addition.
3. Regulatory Requirements
The proposed addition will specify replacement costs to be assessed on conviction for unlawfully possessing or killing specified species.
4. Persons Affected
Individuals unlawfully possessing or killing certain game and wildlife species will be affected by the proposed addition.
Proposed Addition of § 137.33
1. Introduction
To more effectively manage the wildlife resources of this Commonwealth, the Commission, at its January 23, 2001, meeting proposed adding § 137.33. The Commission has expended a great deal of resources in encouraging the growth of the elk herd in this Commonwealth. Section 2121(b) of the code (relating to killing game or wildlife to protect property) authorizes the Commission to designate by regulation, game or wildlife for which every reasonable effort must be expended to live trap and transfer prior to killing. The proposed addition would designate elk as being such a species and provide procedures to be followed in dealing with nuisance elk.
2. Purpose and Authority
The elk herd in this Commonwealth is growing. With that growth comes conflicts, particularly with those engaged in growing crops that elk like to eat. The Commission has taken steps to create and preserve elk habitat and to trap and transfer elk. Unfortunately, conflicts still occur with those lawfully authorized by section 2121 of the code to kill game or wildlife to protect property.
A partial solution to this problem may lie in section 2121(b) of the code, which protects endangered and threatened species and authorizes the Commission to protect other species. This subsection requires that every reasonable effort be made to live trap and transfer the wildlife before lethal steps are taken. The proposed addition will provide that protection to elk.
In addition to section 2121(b) of the code, section 2102 of the code directs the Commission to ''. . . promulgate such regulations as it deems necessary and appropriate concerning game or wildlife . . .'' These provisions provide the authority for the proposed addition.
3. Regulatory Requirements
The proposed addition will require the exhaustion of all reasonable efforts, including considering the possibility of erection of elk deterrent fencing and the live trap and transfer of elk.
4. Persons Affected
Individuals living in the elk range who are qualified to kill wildlife to protect property will be affected by the proposed addition.
Proposed Amendment of § 139.2
1. Introduction
To more effectively manage the wildlife resources of this Commonwealth, the Commission at its January 23, 2001, proposed amending § 139.2 to add definitions of ''antlered elk'' and ''antlerless elk,'' and to revise the definition of ''field possession limit--deer'' to eliminate the requirement that a harvested deer be transported and secured prior to harvesting additional deer. These changes were proposed under the authority contained in section 322(c)(1) of the code (relating to powers and duties of the commission) and section 2102(b)(1) of the code.
2. Purpose and Authority
Act 111 authorized the Commission to issue elk hunting licenses. The Commission has proposed that there be a 6 day elk hunting season in 2001. To carefully control the harvest of elk, antlered and antlerless elk must be distinguished. The proposed amendment of § 139.2 would accomplish this purpose.
In addition, last year the Commission had established by definition of ''field possession limit--deer,'' a field possession limit of one deer at a time. Where multiple harvests of deer are authorized, however, the Commission wants to encourage a high harvest of deer. To do this, the Commission has proposed changing the definition contained in § 139.2 to require only the lawful tagging of a harvested deer prior to harvesting another deer.
The Commission is required to set hunting and furtaking seasons and bag limits on an annual basis. Section 322(c) of the code specifically empowers the Commission to ''. . . fix seasons . . . and daily, season and possession limits for any species of game or wildlife.'' Section 2102(b) of the code mandates that the Commission promulgate regulations relating to seasons and bag limits. These sections provide the authority for the proposed amendment.
3. Regulatory Requirements
The addition of definitions of ''antlered'' and ''antlerless'' elk will facilitate requiring elk hunters to distinguish between the two. The change in the definition of ''field possession limit--deer'' will relax requirements but still require the lawful tagging of harvested deer.
4. Persons Affected
Individuals wishing to hunt deer and elk will be affected by the proposals.
5. Cost and Paperwork Requirements
The proposed amendment should not result in any additional cost or paperwork.
Effective Date
The proposed changes will be effective on final publication in the Pennsylvania Bulletin and will remain in effect until changed by the Commission.
Contact Person
For further information on the change contact David E. Overcash, Acting Director, Bureau of Law Enforcement, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, (717) 783-6526.
VERNON R. ROSS,
Executive DirectorFiscal Note: 48-128. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART III. GAME COMMISSION
CHAPTER 131. PRELIMINARY PROVISIONS § 131.2. Definitions.
In addition to the definitions contained in section 102 of the act (relating to definitions), the following words and terms, when used in this part, or in the act have the following meanings, unless the context clearly indicates otherwise:
* * * * * Crossbow--A device consisting of a bow fixed transversely on a stock, the string of which is released by a trigger mechanism, has a mechanical safety and propels an arrow.
* * * * * § 131.4. Civil liability for wildlife killed.
(a) If a voluntary settlement cannot be reached, the Director or an officer designated by the Director may bring a civil action in the name of the Commission against a person killing or unlawfully in possession of wildlife, or part thereof, and may seek to recover an amount not less than the penalties prescribed in section 2307 [(d)] (e) of the act (relating to unlawful taking or possession of game or wildlife).
* * * * * § 131.8. Replacement costs for wildlife killed.
In addition to the penalties provided for the violation of any of the provisions of the act or this title, every person who unlawfully kills or possesses wildlife shall be assessed the following replacement costs:
(1) Each elk, bear or threatened or endangered bird or mammal not less than $800 nor more than $5,000.
(2) Each elk with at least six points on one antler, not less than $5,000 nor more than $10,000.
CHAPTER 137. WILDLIFE § 137.33. Protection of elk.
(a) Elk are hereby designated as protected under section 2121(b) of the act (relating to killing game or wildlife to protect property). Elk may not be killed under section 2121(a) of the act without first expending every effort to live trap and transfer the animal in cooperation with a representative of the Commission.
(b) The following procedures shall be followed before an elk can be lawfully killed under the provisions of section 2121(a) of the act.
(1) The person who qualifies to kill for crop damage shall give telephone or facsimile notice of damage by elk to the applicable regional office of the Commission.
(2) The local representative of the Commission will contact the complainant within 24 hours of receipt of notice at the regional office. During this period, the qualified person may take any reasonable measures short of killing the elk such as creating obstacles or harassment to avoid or minimize damage.
(3) The local representative of the Commission will make every reasonable effort to trap and transfer the elk involved and otherwise assist the qualified person in eliminating elk damage. This will also include consideration of the erection of a deterrent fence under Chapter 5, Subchapter C of the act (relating to erection of deterrent fences).
(4) If all efforts do not eliminate elk damage, the local representative of the Commission will either kill the elk or authorize the qualified person to kill the elk in compliance with Chapter 21, Subchapter B of the act (relating to destruction for agricultural protection).
(c) A person violating this subchapter will be subject to the penalties provided in section 2126 of the act (relating to unlawful activities).
CHAPTER 139. SEASONS AND BAG LIMITS § 139.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Antlered elk--An elk having at least one spike visible above the hairline.
* * * * * Antlerless elk--An elk without antlers, or an elk without at least one spike visible above the hairline.
* * * * * Field possession limit--deer--When multiple harvests of deer per day are authorized, only one deer at a time may be harvested [and possessed in the field or forest]. Before harvesting additional deer, the deer previously harvested shall be [transported and secured at the hunter's motor vehicle, permanent or temporary camp, residence, deer processing facility or pick-up point] lawfully tagged.
* * * * *
[Pa.B. Doc. No. 01-549. Filed for public inspection March 30, 2001, 9:00 a.m.]
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