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PA Bulletin, Doc. No. 98-1652



[58 PA. CODE CHS. 133, 145 AND 147]

Wildlife Classification, Hearing Procedures and Special Permits

[28 Pa.B. 5244]

   To effectively manage the wildlife resources of this Commonwealth, the Game Commission (Commission) at its July 14, 1998, meeting, proposed amendments to read as set forth in Annex A. The Commission is proposing to:

   Amend § 133.21 (relating to classification of birds) to change the status of several species of birds of special concern in this Commonwealth.

   Amend § 145.21 (relating to Deputy Game Protector hearing procedure) to make editorial changes to more accurately reflect the proper title for deputy wildlife conservation officers, and to provide for deputy wildlife conservation officer's trial board hearing procedures to be closed to the public.

   Amend § 147.109 (relating to restrictions on taking raptors) to provide for a limited number of special permits for nonresident falconers from reciprocating states to take a raptor from the wild in this Commonwealth.

   These proposed amendments will have no adverse impact on the wildlife resources of this Commonwealth.

   The authority for this proposal is 34 Pa.C.S. (relating to Game and Wildlife Code) (code).

   These proposals were made public at the July 14, 1998, meeting of the Commission, and comments on these proposals may be sent to the Executive Director of the Pennsylvania Game Commission, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, until November 30, 1998.

Proposed Amendment to § 133.21

1.  Introduction

   To more effectively manage the wildlife resources of this Commonwealth, the Commission at its meeting held on July 14, 1998, proposed changing § 133.21 to change the endangered and threatened status of a number of birds. This proposed action resulted from a recommendation of the Ornithological Technical Committee of the Pennsylvania Biological Survey. The proposal is being made under authority contained in sections 322(c)(8) and 2102(a) of the code (relating to powers and duties of the Commission; and regulations).

2.   Purpose and Authority

   The Ornithological Technical Committee of the Pennsylvania Biological Survey reviews the status of birds on the list of birds of special concern in this Commonwealth every 5 years. The Committee recently completed a review and recommended to the Commission that the status of seven birds be changed. The status of five birds would be upgraded while the status of two birds, Osprey and Common Tern would be downgraded.

   Section 322(c)(8) of the code authorizes the Commission to add to or change the classifications of any bird or wild animal. Section 2102(a) of the code directs the Commission to promulgate regulations it deems necessary and appropriate concerning game or wildlife. The proposed section would be adopted under this authority.

3.  Regulatory Requirements

   Since species that are endangered or threatened are essentially equally protected, the proposed changes in classification will make little difference, with one exception. The status of the Dickcissel is being changed from ''undetermined'' to ''threatened.'' As such, it will receive increased protection.

4.  Persons Affected

   As was indicated under Regulatory Requirements, the changes in status should not have any practical impact. Those encountering Dickcissels or their nests would be affected by the change to threatened status.

5.  Cost and Paperwork

   The proposed change would not add any additional cost or paperwork.

Proposed Amendment to § 145.21

1.  Introduction

   To better administer the code, the Commission at its meeting held on July 14, 1998, proposed changing § 145.21 to update terminology and provide that the hearings be closed to the public. These changes are being proposed under powers conferred in section 304 of the code (relating to Deputy Game Commission Officers).

2.  Purpose of Authority

   With the adoption of the code, the designation of the Commission's officers was changed from ''game protector'' to ''wildlife conservation officer.'' This terminology was never changed in § 145.21. The proposed change would rectify this situation.

   In addition, hearings for deputy officers are usually disciplinary in nature which may involve disclosure of essentially private information. To protect the privacy and rights of the officers involved, the Commission has proposed that the hearings not be open to the public.

   Section 304 of the code, authorizes the Commission to appoint deputy game commission officers. That section also makes those deputies '' subject to all requirements and regulations, either of the law or of the commission . . .''

3.   Regulatory Requirements

   The proposed changes would not impose any additional regulatory requirements.

4.  Persons Affected

   Wildlife conservation officers, Deputies and other individuals involved in deputy hearings would be affected by the proposed change.

5.  Cost and Paperwork Requirements

   The proposed change would not add any additional cost or paperwork.

Proposed Amendment to § 147.109.

1.  Introduction

   To more effectively manage the wildlife resources of this Commonwealth, the Commission, at its meeting held on July 14, 1998, proposed changing § 147.109 to allow nonresident falconers to apply for a permit to take a raptor in this Commonwealth if their home state reciprocates. The changes are proposed under the section 2901(b) of the code (relating to regulations for permits).

2.  Purpose and Authority

   With certain exceptions, prior to enactment of Act 19 of 1996, which amended section 2901 of the code, the Commission could not issue permits to nonresidents. This meant that Pennsylvania falconers could not take advantage of a wider variety of raptors available in other states because other states will only reciprocate in allowing the taking of raptors. Act 19 of 1996 changed this and authorizes the Commission to now reciprocate in allowing nonresidents to take raptors in this Commonwealth. The proposed changes are the implementing provisions for this reciprocity.

   Section 2901(b) of the code authorizes the Commission to promulgate regulations '' . . . for the issuance of any permit or to control the activities which may be performed under authority of any permit issued . . .'' This provision is the basis for the proposed changes.

3.  Regulatory Requirements

   Nonresident falconers wishing to take a raptor in this Commonwealth would need to be from a state that reciprocates in the taking of raptors and would be subject to a number of limitations.

4.  Persons Affected

   Nonresident falconers would be affected by the proposed changes. Resident falconers would benefit from the changes.

5.  Cost and Paperwork Requirements

   Nonresident falconers will need to submit an application and pay a nonrefundable fee of $100. Given the fact that the total number of permits that will be issued is 20, the number of applications should be small.

6.  Effective Date

   These proposed changes would be effective on final publication in the Pennsylvania Bulletin and would remain in effect until changed by the Commission.

7.  Contact Person

   For further information on the proposed changes, contact James R. Fagan, Director, Bureau of Law Enforcement, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, (717) 783-6526.

Executive Director

   Fiscal Note:  48-105. No fiscal impact; (8) recommends adoption.

Annex A




Subchapter B.  BIRDS

§ 133.21.  Classification of birds

   The following birds are classified:

   (1)  Endangered.

*      *      *      *      *

   (ii)  King Rail ([Railus] Rallus elegans)

*      *      *      *      *

   (iv)  Black Tern ([Clidonias] Chlidonias niger)

   (v)  [Osprey (Pandion haliaetus)] Least Bittern (Ixobrychus exilis)

*      *      *      *      *

   (vii)  Loggerhead Shrike (Lanius ludovicianus [migrans])

   (viii)  American Bittern (Botaurus lentiginosus)

   (ix)  Great Egret (Casmerodius albus)

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

   (xi)   Common Tern (Sterna hirundo)

   (2)  Threatened.

   (i)  [Least Bittern (Ixobrychus exilis)

   (ii)  American Bittern (Botaurus lentiginosus)] Osprey (Pandion haliaetus)

   (ii)   Dickcissel (Spiza americana)

*      *      *      *      *

   (v)  [Great Egret (Casmerodius ulbus)

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

   (vii)] Yellow-bellied Flycatcher ([Empidomax] Empidonax flaviventris)



§ 145.21.  Deputy [Game Protector] wildlife conservation officer hearing procedure.

   (a)  Deputy [Game Protectors] wildlife conservation officers will not be dismissed from Commission service without first being granted an opportunity for a hearing, unless the hearing is waived by the Deputy whose dismissal is proposed.

   (b)  A Deputy [Game Protector] wildlife conservation officer who is suspended and recommended for dismissal on the grounds of negligence, disregard of duties, conduct unbecoming an officer, unsatisfactory work or an indiscreet act will be cited for a hearing and dismissal on the grounds of inefficiency, indiscretion or insubordination.

   (c)  Charges against a [Deputy Game Protector] wildlife conservation officer for reason of negligence, disregard of duties, conduct unbecoming an officer, unsatisfactory work, or indiscreet act may be brought by a superior officer, in writing, and filed with the Director.

*      *      *      *      *

   (e)  If a hearing is requested, the Director will appoint a member of the staff as hearing officer to hear the charges. Hearings conducted under this subchapter are considered disciplinary matters and will be closed to the public.

*      *      *      *      *


Subchapter F.  FALCONRY

§ 147.109.  Restrictions on taking raptors.

   (a)  Taking restrictions for residents are as follows:

*      *      *      *      *

   (b)  Taking restrictions for nonresidents are as follows:

   (1)  A nonresident possessing a current and active falconry permit in the General or Master Classification in a state listed in 50 CFR 21--29(k) (relating to Federal falconry standards), may apply for a special permit to take a raptor in this Commonwealth if the home state of the applicant allows the taking of raptors by nonresidents.

   (2)  The fee for a permit to take a raptor is $100 and is not refundable.

   (3)  Applications for this permit shall be submitted directly to the Commissions' Bureau of Law Enforcement and shall state the applicants name, address, date of birth, telephone number and the species desired and whether a nestling (eyas) or passage bird is requested. Copies of the applicant's current state or Federal, or both, falconry permit along with a valid import permit or letter from the applicant's home state authorizing the import of the raptor being requested shall accompany the application. A certified check or money order in the amount of $100 payable to ''Pennsylvania Game Commission'' shall accompany the application.

   (4)  Applications may only be submitted between January 1 and February 28 annually.

   (5)  Periods for taking raptors as authorized under a nonresident take permit are May 8 to July 15 inclusive for nestling (eyas) birds or September 19 to December 31, inclusive for passage birds.

   (6)  A permittee may not take the last remaining nestling--eyas--from a nest.

   (7)  The number of permits issued annually will not exceed:

5 Nestling (Eyas)
15 Passage

   (8)  Eyas Goshawk birds may not be taken.

   (9)  Permits will be issued under a first-come-first-served procedure until the annual allocation is exhausted.

   (10)  The acquisition of a raptor taken from the wild as authorized by the take permit shall be immediately reported to the Commission by completing a Form 3-186A (Migratory Bird Acquisition and Disposition Report) and forwarding a copy to the Bureau of Law Enforcement, Technical Services Division.

   (11)  Marking of certain raptors shall be as directed in 50 CFR 21.28(d)(7) (relating to falconry permits).

   (12)   Raptors taken under the authority of this permit shall be used for falconry purposes only.

[Pa.B. Doc. No. 98-1706. Filed for public inspection October 16, 1998, 9:00 a.m.]

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