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PA Bulletin, Doc. No. 23-1510



[58 PA. CODE CH. 133]

Wildlife Classification; Birds

[53 Pa.B. 6868]
[Saturday, November 4, 2023]

 To effectively manage the wildlife resources of this Commonwealth, the Game Commission (Commission) proposed at its September 16, 2023, meeting to amend § 133.21 (relating to classification of birds) to add the Black Rail (Laterallus jamaicensis) to the Commonwealth's list of threatened birds due to its Federally protected status and small, sporadic population in this Commonwealth.

 This proposed rulemaking will not have an adverse impact on the wildlife resources of this Commonwealth.

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

 This proposed rulemaking was made public at the September 16, 2023, meeting of the Commission. Comments can be sent until January 24, 2024, to the Director, Information and Education, Game Commission, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797.

1. Purpose and Authority

 Black Rails are the smallest rail species in North America and the most secretive in behavior and habitat. Although this species is considered uncommon in this Commonwealth, compelling evidence indicates territories have been established and nesting may have been attempted. In 2020, the United States Fish and Wildlife Service classified the Eastern Black Rail subspecies Laterallus jamaicensis jamaicensis as threatened under the Endangered Species Act of 1973 (16 U.S.C. §§ 1531—1544), indicating between 0 to 5 breeding pairs currently occur in this Commonwealth. The Commission is proposing to amend § 133.21 to add the Black Rail (Laterallus jamaicensis) to the Commonwealth's list of threatened birds due to its Federally protected status and small, sporadic population in this Commonwealth.

 Section 322(c)(8) of the code (relating to powers and duties of commission) specifically empowers the commission to ''[a]dd to or change the classification of any wild bird or wild animal.'' Section 2102(a) of the code (relating to regulations) provides that ''[t]he 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 proposed under this authority.

2. Regulatory Requirements

 This proposed rulemaking will amend § 133.21 to add the Black Rail to the Commonwealth's list of threatened birds.

3. Persons Affected

 Persons concerned with Black Rail within this Commonwealth will be affected by this proposed rulemaking.

4. Cost and Paperwork Requirements

 This proposed rulemaking should not result in any additional cost or paperwork.

5. Effective Date

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

6. Contact Person

 For further information about this proposed rulemaking, contact Jason L. DeCoskey, Director, Bureau of Wildlife Protection, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, (717) 783-6526.

Executive Director

Fiscal Note: 48-501. No fiscal impact; recommends adoption.

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 (Nyctanassa violacea)

 (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 stellaris)

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

 (xvi) Upland Sandpiper (Batramia longicauda)

 (xvii) Northern Goshawk (Accipiter gentilis)

 (2) Threatened.

 (i) Northern Harrier (Circus hudsonius)

 (ii) Long-eared Owl (Asio otus)

 (iii) [Reserved]

 (iv) Red Knot (Calidris canutus rufa)

(v) Black Rail (Laterallus jamaicensis)

[Pa.B. Doc. No. 23-1510. Filed for public inspection November 3, 2023, 9:00 a.m.]

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