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PA Bulletin, Doc. No. 04-761



[58 PA. CODE CH. 147, 147a AND 147b]


[34 Pa.B. 2329]

   To effectively manage the wildlife resources of this Commonwealth, the Game Commission (Commission), at its October 7, 2003, meeting, adopted the following amendments:

   Add Chapter 147, Subchapter U (relating to depredation) to provide permanent regulations regarding the co-signing of Federal depredation permits for migratory birds (both waterfowl and nonwaterfowl); and rescind Chapters 147a and 147b.

   The final-form rulemaking will have no adverse impact on the wildlife resources of this Commonwealth.

   The authority for the final-form rulemaking is 34 Pa.C.S. (relating to Game and Wildlife Code) (code).

   Notice of proposed rulemaking was published at 33 Pa.B. 4682 (September 20, 2003).

1.  Introduction

   The Commission is adding Subchapter U to provide policy and procedures regarding the co-signing of Federal depredation permits for migratory birds (both waterfowl and nonwaterfowl).

2.  Purpose and Authority

   Though waterfowl and other migratory birds are widely recognized as a valuable natural resource and are enjoyed by millions of residents in this Commonwealth, their presence in certain natural and man-altered environments can be devastating and costly. This is particularly the case in certain agricultural areas and during late winter and spring. Regulated hunting has been and still is the most effective and preferred method to control waterfowl populations over the long term. Thus, regulated hunting is given first priority in the proper management of waterfowl populations by this final-form rulemaking.

   There are, however, some situations when hunting is ineffective or impractical to properly address waterfowl populations and their associated effects in certain areas. It is in these areas that the mitigation of nuisance and damage problems may require alternative methods of management, including both lethal and nonlethal procedures. 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. This final-form rulemaking will additionally require that applications for depredation permits be co-signed by the Commission.

   Adding Subchapter U will, in part, replace Chapter 147a (relating to temporary guidelines relating to the co-signing of Federal depredation permits--statement of policy), first established in January 1995. Chapter 147a provided temporary guidelines relating to the co-signing of Federal depredation permits for migratory birds other than waterfowl. Subchapter U will provide permanent procedures for the co-signing of depredation permits regarding migratory birds other than waterfowl by the Commission.

   Adding Subchapter U, specifically §§ 147.744 and 147.745 (relating to depredation permits for migratory waterfowl; and exclusions), will also replace Chapter 147b (relating to guidelines relating to the issuance of depredation permits for waterfowl--statement of policy). Chapter 147b provided temporary guidelines regarding the co-signing of Federal depredation permits for migratory waterfowl. Subchapter U will provide permanent procedures for the co-signing of depredation permits regarding migratory waterfowl by the Commission. It will also provide a listing of those migratory bird species that are excluded from those species subject to depredation permits by standing Federal depredation order.

   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 2103(a) of the code (relating to applicability of Federal laws) states that ''Federal regulations shall not apply if commission regulations or other provisions of this title prescribe stronger or more detailed restrictions for the taking of migratory birds, nongame birds or game or wildlife.'' 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 final-form rulemaking.

3.  Regulatory Requirements

   The final-form rulemaking will establish certain prerequisites and procedures for an applicant to complete before a Federal depredation permit will be co-signed by the Commission. These prerequisites and procedures include the exhaustion of all reasonable nonlethal methods for damage control and, in the case of waterfowl, having the site open to hunting and that hunting has been ineffective or is impractical.

4.  Persons Affected

   Persons suffering damage from and wishing to apply for depredation permits for migratory birds will be affected by the final-form rulemaking.

5.  Comment and Response Summary

   There were no official comments received regarding this final-form rulemaking.

6.  Cost and Paperwork Requirements

   The final-form rulemaking should not result in additional cost or paperwork.

7.  Effective Date

   The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin and will remain in effect until changed by the Commission.

8.  Contact Person

   For further information regarding the final-form rulemaking, contact Michael A. Dubaich, Director, Bureau of Law Enforcement, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, (717) 783-6526.


   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) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  The adoption of these amendments of the Commission in the manner provided in this order is necessary and appropriate for the administration and enforcement of the authorizing statute.


   The Commission, acting under authorizing statute, orders that:

   (a)  The regulations of the Commission, 58 Pa. Code Chapters 147, 147a and 147b, are amended by adding §§ 147.741--147.745 and by deleting §§ 147a.1--147a.6 and 147b.1--147b.4 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.

Executive Director

   Fiscal Note:  Fiscal Note 48-170 remains valid for the final adoption of the subject regulations.

Annex A




Subchapter U.  DEPREDATION


147.742.Depredation permits for migratory birds other than waterfowl.
147.743.Disposition of birds destroyed.
147.744.Depredation permits for migratory waterfowl.

§ 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 purpose of this definition.

   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 or 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 and of 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, 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 except on airports covered by Airport Safety Control permits issued by the Commission.

   (ii)  Waterfowl may only be taken with shotgun using nontoxic shot no larger than size T.

   (iii)  The use of blinds, bait, decoys and calls is 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)  The 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.

   (c)  Waterfowl carcasses taken under depredation permits will be used according to the following guidelines:

   (1)  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.

   (2)  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.

   (a)  A permit is not required for red winged and rusty blackbirds, cowbirds and grackles which are listed in the United States Fish and Wildlife Service's standing depredation order (50 CFR 21.43 (relating to depredation order for blackbirds, cowbirds, grackles, crows and magpies)).

   (b)  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).

   (c)  Depredation permits for waterfowl will only be issued during the waterfowl hunting season, where hunting cannot be used as a control method.

   (d)  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 WS.

CHAPTER 147a.  (Reserved)

§§ 147a.1--147a.6.  (Reserved).

CHAPTER 147b.  (Reserved)

§§ 147b.1--147b.4.  (Reserved).

[Pa.B. Doc. No. 04-761. Filed for public inspection April 30, 2004, 9:00 a.m.]

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