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PA Bulletin, Doc. No. 21-1755




[ 58 PA. CODE CH. 133 ]

Wildlife Classification; Birds

[51 Pa.B. 6609]
[Saturday, October 23, 2021]

 To effectively manage the wildlife resources of this Commonwealth, the Game Commission (Commission) at its September 11, 2021, meeting amends § 133.21 (relating to classification of birds) to add the northern goshawk (Accipiter gentilis) to the Commonwealth's list of endangered birds and to delete the peregrine falcon (Falco pereginus) from the Commonwealth's list of threatened birds.

 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 51 Pa.B. 5688 (September 4, 2021).

1. Purpose and Authority

 The Commission made two changes to the Commonwealth's lists of threatened and endangered birds based on current monitoring data. First, the Commission amends § 133.21 to add the northern goshawk (Accipiter gentilis) to the Commonwealth's list of endangered birds. A large secretive raptor of mature, mixed forests, the northern goshawk (Accipiter gentilis) is found in the northern tier and high elevations across this Commonwealth and has experienced both range contraction and breeding population decline over the past 20 years. Primary threats to northern goshawks (Accipiter gentilis) include forest fragmentation and degradation, nest site disturbance, disease and predation. This Commonwealth lies at the southern limits of the range of the Northeastern population of northern goshawk (Accipiter gentilis), which makes this population more susceptible to the previous effects. Several recent agency-supported efforts to better understand this species have documented a dramatic decline in the Commonwealth's population. The agency's advisory Ornithological Technical Committee has recommended a change to endangered status. This change will tailor protections for the species, including, but not limited to, limiting or delaying certain activities within known breeding northern goshawk (Accipiter gentilis) habitat during courtship and nesting seasons.

 Second, the Commission amends § 133.21 by deleting the peregrine falcon (Falco peregrinus) from the Commonwealth's list of threatened birds. This Commonwealth's population of nesting peregrine falcons (Falco peregrinus) has continued to increase since the Commission's upgrade of the species from endangered to threatened in 2019, and the objectives established in the Commission's 2013—2022 Peregrine Falcon Management Plan have been achieved. This current status revision comes after more than 40 years of conservation recovery action in this Commonwealth and Nationally, in which the Commission has taken an active role. This status change accomplishes a significant victory for the Commission as the third high-profile raptor recovery, following bald eagle and osprey and demonstrating that an endangered or threatened species listing is not a permanent designation, and recovery is an achievable goal.

 Section 322(c)(8) of the code (relating to powers and duties of commission) specifically empowers the Commission to ''Add to or change the classification of any wild bird or wild animal.'' 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 and hunting or furtaking in this Commonwealth, including regulations relating to the protection, preservation and management of game or wildlife and game or wildlife habitat, permitting or prohibiting hunting or furtaking, the ways, manner, methods and means of hunting or furtaking, and the health and safety of persons who hunt or take wildlife or may be in the vicinity of persons who hunt or take game or wildlife in this Commonwealth.'' The amendments to § 133.21 are adopted under this authority.

2. Regulatory Requirements

 This final-form rulemaking amends § 133.21 to add the northern goshawk (Accipiter gentilis) to the Commonwealth's list of endangered birds and deletes the peregrine falcon (Falco pereginus) from the Commonwealth's list of threatened birds.

3. Persons Affected

 Persons interested or affected by the classification status of the northern goshawk (Accipiter gentilis) or the peregrine falcon (Falco pereginus) will be affected by this final-form rulemaking.

4. Comment and Response Summary

 The Commission received a total of 14 comments concerning this final-form rulemaking. All 14 of these comments generally supported and celebrated delisting the peregrine falcon (Falco pereginus) as threatened. Two of these comments from falconers permitted by the Commission also opposed or questioned listing the northern goshawk (Accipiter gentilis) as endangered due to its impacts on falconry activities relating to this species. The Commission recognizes that listing the northern goshawk (Accipiter gentilis) as endangered will necessarily restrict falconers from engaging in falconry activities concerning this species. However, the Commission also recognizes the gravity and importance of its mandate to take action to conserve and protect the Commonwealth's most vulnerable species of wildlife, even to the extent that such action creates adverse collateral consequences to recreational activities such as falconry.

5. Cost and Paperwork Requirements

 This final-form rulemaking should 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 regarding this final-form rulemaking, contact Jason L. DeCoskey, Director, Bureau of Wildlife Protection, 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), 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.


 The Commission, acting under the authorizing statute, orders that:

 (a) The regulations of the Commission, 58 Pa. Code Chapter 133, are amended by amending § 133.21 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 final-form publication in the Pennsylvania Bulletin.

Executive Director

Fiscal Note: Fiscal Note 48-473 remains valid for the adoption of the subject regulation.

Annex A




Subchapter B. BIRDS

§ 133.21. Classification of birds.

 The following birds are classified:

 (1) Endangered.

 (i) King Rail (Rallus elegans)

 (ii) Short-eared Owl (Asio flammeus)

 (iii) Black Tern (Chlidonias niger)

 (iv) Least Bittern (Ixobrychus exilis)

 (v) Piping Plover (Charadrius melodus)

 (vi) Loggerhead Shrike (Lanius ludovicianus)

 (vii) American Bittern (Botaurus lentiginosus)

 (viii) Great Egret (Ardea alba)

 (ix) Yellow-crowned Night Heron (Nycticorax violaceus)

 (x) Common Tern (Sterna hirundo)

 (xi) Blackpoll Warbler (Setophaga striata)

 (xii) Black-crowned Night-Heron (Nycticorax nycticorax)

 (xiii) Dickcissel (Spiza americana)

 (xiv) Sedge Wren (Cistothorus platensis)

 (xv) Yellow-bellied Flycatcher (Empidonax flavi-ventris)

 (xvi) Upland Sandpiper (Batramia longicauda)

 (xvii) Northern Goshawk (Accipiter gentilis)

 (2) Threatened.

 (i) Northern Harrier (Circus cyaneus)

 (ii) Long-eared Owl (Asio otus)

 (iii) (Reserved)

 (iv) Red Knot (Calidris canutus rufa)

[Pa.B. Doc. No. 21-1755. Filed for public inspection October 22, 2021, 9:00 a.m.]

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