PROPOSED RULEMAKING
[58 PA. CODE CHS. 147, 147b AND 147c]
Depredation
[33 Pa.B. 4682] To effectively manage the wildlife resources of this Commonwealth, the Game Commission (Commission), at its June 24, 2003, meeting, proposed the following amendment:
Add Subchapter U (relating to depredation) to provide permanent regulations regarding the co-signing of Federal depredation permits for migratory birds (both waterfowl and nonwaterfowl).
The proposed rulemaking will have no adverse impact on the wildlife resources of this Commonwealth.
The authority for the proposed regulations is 34 Pa.C.S. (relating to Game and Wildlife Code) (code).
The proposed rulemaking was made public at the June 24, 2003, meeting of the Commission. Comments can be sent until October 3, 2003, to the Director, Information and Education, Game Commission, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797.
1. Introduction
The Commission is proposing to add Subchapter U to provide policy and procedure relating to the co-signing of Federal depredation permits for migratory birds (both waterfowl and nonwaterfowl).
2. Purpose and Authority
Subchapter U will replace Chapter 147a (relating to temporary guidelines relating to the co-signing of Federal depredation permits--statement of policy), established in January 1995, that provided temporary guidelines relating to the co-signing of Federal depredation permits for migratory birds other than waterfowl. Subchapter U, in addition to providing definitions, will provide procedures for the Commission's co-signing of depredation permits relating to migratory birds other than waterfowl.
Sections 147.744 and 147.745 (relating to depredation permits for migratory waterfowl; and exclusions) will replace Chapter 147b (relating to guidelines relating to the issuance of depredation permits for waterfowl--statement of policy), which references depredation permits for migratory waterfowl. These sections will identify the procedures under which the Commission will co-sign Federal migratory bird depredation permits for the purpose of reducing nuisance and damage problems from waterfowl, as well as provide a listing of those migratory bird species which are excluded from permitting by standing Federal depredation order. Though waterfowl are recognized as a valuable natural resource enjoyed by millions of residents in this Commonwealth, there are many situations when they can have devastating effects on natural and man-altered environments including agriculture, particularly during the late winter and spring. Regulated hunting is the preferred method and most effective tool to control waterfowl populations over the long term and must be given first priority in their management, as required by the proposed rulemaking.
However, there are some situations when hunting is ineffective or impractical. In these situations, mitigation of nuisance and damage problems may require alternative methods, including both nonlethal and lethal procedures. Since the United States Fish and Wildlife Service has the authority under the Migratory Bird Treaty Act (16 U.S.C.A. §§ 703--711) to issue migratory bird permits authorizing the taking of migratory birds and their nests, eggs and young to address depredation and damage problems, the Commission has developed the proposed rulemaking under which applications for depredation permits for waterfowl may be co-signed.
Section 2901(b) of the code (relating to authority to issue permits) provides ''the Commission may, as deemed necessary to properly manage the game or wildlife resources, promulgate regulations for the issuance of any permit and promulgate regulations to control the activities which may be performed under authority of any permit issued.'' Section 2102(a) of the code (relating to regulations) provides that ''The commission shall promulgate such regulations as it deems necessary and appropriate concerning game or wildlife . . . in this Commonwealth, including regulations relating to the . . . management of game or wildlife and game or wildlife habitat . . . in this Commonwealth.'' These provisions provide the statutory authority for the proposed rulemaking.
3. Regulatory Requirements
The proposed rulemaking will establish certain prerequisites and procedures before a Federal depredation permit will be co-signed by the Commission. These include the exhaustion of all reasonable nonlethal methods for damage control and, in the case of waterfowl, having the site open to hunting; an agreement to follow recommendations for working toward a permanent solution and having the situation verified by means of a visit from a Wildlife Conservation Officer.
4. Persons Affected
Persons suffering damage from and wishing to apply for depredation permits for migratory birds will be affected by the proposed rulemaking.
5. Cost and Paperwork Requirements
The proposed rulemaking should not result in additional cost or paperwork.
6. Effective Date
The proposed rulemaking will be effective on final-form publication in the Pennsylvania Bulletin and will remain in effect until changed by the Commission.
7. Contact Person
For further information on the proposed rulemaking, contact Michael A. Dubaich, Director, Bureau of Law Enforcement, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, (717) 783-6526.
VERNON R. ROSS,
Executive DirectorFiscal Note: 48-170. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART III. GAME COMMISSION
CHAPTER 147. SPECIAL PERMITS
Subchapter U. DEPREDATION Sec.
147.741. Definitions. 147.742. Depredation permits for migratory birds other than waterfowl. 147.743. Disposition of birds destroyed. 147.744. Depredation permits for migratory waterfowl. 147.745. Exclusions. § 147.741. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Applicant--The owner or principal officer of an aquaculture facility, which is suffering severe economic loss, or a person suffering property damage from migratory birds.
Aquaculture--The controlled culture of aquatic organisms, particularly finfish, under artificial circumstances--that is, ponds, raceways--for economic profit or by the Fish and Boat Commission. Net pens are excluded for the purposes of this policy due to the lack of effective deterrence of depredation by killing birds in open waters.
WCO--Wildlife Conservation Officer.
WS--United States Department of Agriculture Wildlife Services.
§ 147.742. Depredation permits for migratory birds other than waterfowl.
(a) A depredation permit issued by the United States Fish and Wildlife Service to an applicant may be co-signed under the following circumstances:
(1) A visit to the applicant's facility has been made by a WCO and the WS representative and a problem is verified to exist. A copy of WS Migratory Bird Damage Project Report will be furnished to the Commission by the WS investigator before submitting the form to the United States Fish and Wildlife Service.
(2) The applicant has exhausted all recommendations for reasonable nonlethal control methods provided by the Commission and the WS representative.
(3) The applicant agrees to implement WS/Commission recommendations for working towards a permanent solution within a period of time agreed to by the applicant, if economically feasible for the facility.
(b) Upon receipt of an application for a United States Fish and Wildlife Service depredation permit that meets the requirements of subsection (a)(1)--(3), the Commission will review the application and if approved forward the application to the United States Fish and Wildlife Service Migratory Bird Permit office.
§ 147.743. Disposition of birds destroyed.
Unless otherwise specified in a particular permit, the following apply:
(1) Within 48 hours of killing birds, the permittee shall notify the Commission by phone of the killing, the number of birds killed and the species of birds killed.
(2) Birds shall be disposed of as specified in the permit or as directed by the Commission.
§ 147.744. Depredation permits for migratory waterfowl.
(a) A depredation permit issued by the United States Fish and Wildlife Service to an applicant may be co-signed by the Commission when the following criteria are met:
(1) Subsequent to a complaint, the site has been visited by a WCO to verify that a problem exists. A Commission waterfowl complaint form will be furnished to the Commission by the WCO. A copy of the Federal depredation permit application will be furnished to the complainant by the WCO.
(2) The applicant has demonstrated the site is open to hunting and hunting has been ineffective or hunting is impractical.
(3) The applicant shall demonstrate that reasonable nonlethal control methods have been attempted. Nonlethal control methods shall include the following:
(i) Feeding of waterfowl is prohibited. The applicant shall address this issue and include evidence of the enforcement of a ''no feeding'' policy.
(ii) Exclusion and harassment measures (fencing, repellents, scare devices, and the like).
(iii) Habitat manipulation (eliminate feeding areas, resting and breeding habitat).
(b) The following control methods are approved for population reduction and will be specifically identified in the depredation permit:
(1) Oiling or addling or freezing of eggs.
(2) Shooting may be used to reinforce nonlethal measures according to the following guidelines:
(i) The permit will specify the number of birds to be shot with no more than 10% of the nuisance flock to be killed.
(ii) Waterfowl may only be taken with shotgun using nontoxic shot no large than size T.
(iii) The use of blinds, bait, decoys and calls are prohibited.
(3) Depopulation of waterfowl by the applicant, its employees, wildlife control agents, WS or authorized Federal or State wildlife agency personnel will be specified in the permit under the following guidelines:
(i) Number of birds to be killed may not exceed that specified in the permit.
(ii) Killing will be conducted only by persons specified in the permit by shooting with shotguns using nontoxic shot no larger than size T, or capturing birds and euthanasia by chemical or mechanical devices approved for use by the Executive Director or a designee.
(4) Care will be taken to preserve carcasses for human consumption and shall be made available to food banks or others specified in the permit. Birds euthanized by chemical means will not be utilized for human consumption.
(5) When the condition of the birds is unsuitable for human consumption or food banks, or individuals are not available to accept carcasses, the birds may be disposed of in a sanitary method by burying, incineration or depositing in approved landfills or refuse facilities.
§ 147.745. Exclusions.
(1) A permit is not required for any species covered by the United States Fish and Wildlife Service's standing depredation order which is limited to red winged and rusty blackbirds, cowbirds, all grackles and crows.
(2) A depredation permit will not be issued for the taking of any endangered or threatened species, as defined in 50 CFR Part 17 (relating to endangered and threatened wildlife and plants) and § 133.21 (relating to classification of birds).
(3) Depredation permits for waterfowl will only be issued during the waterfowl hunting season for areas where hunting cannot be used as a control method.
(4) A depredation permit will not be renewed if the permittee has not made a good faith effort to implement nonlethal control recommendations by the Commission or the WS.
(Editor's Note: As part of this proposed rulemaking, the Commission is proposing to delete Chapters 147a and 147b as they currently exist at 58 Pa. Code pages 147a-1, 147a-2 and 147b-1--147b-3, serial pages (276245)--(276249).)
CHAPTER 147a. (Reserved)
CHAPTER 147b. (Reserved)
[Pa.B. Doc. No. 03-1840. Filed for public inspection September 19, 2003, 9:00 a.m.]
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