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PA Bulletin, Doc. No. 99-1009

RULES AND REGULATIONS

FISH AND BOAT COMMISSION

[58 PA. CODE CH. 63]

Sale and Purchase of Fish

[29 Pa.B. 3211]

   The Fish and Boat Commission (Commission) by this order amends § 63.19 (relating to sale and purchase of fish). The Commission is publishing this amendment under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The amendment relates to the sale and purchase of fish.

A.  Effective Date

   The amendment will go into effect upon publication of an order adopting the amendment in the Pennsylvania Bulletin.

B.  Contact Person

   For further information on the change, contact Laurie E. Shepler, Assistant Counsel, (717) 657-4546, P. O. Box 67000, Harrisburg, PA 17106-7000. This final rulemaking is available electronically through the Commission's Web site (http://www.fish.state.pa.us).

C.  Statutory Authority

   The amendment is published under the statutory authority of section 2102(c) of the code (relating to rules and regulations, transportation and sale of fish).

D.  Purpose and Background

   The amendment is designed to update, modify and improve Commission regulations relating to the sale and purchase of fish. The specific purpose is described in more detail under the summary of changes.

E.  Summary of Changes

   The act of October 16, 1998 (P. L. 768, No. 94) (Act 94) amended the Commonwealth's agriculture laws to designate aquaculture as a normal farming activity. This amendment transferred most administrative functions related to commercial artificial propagation from the Commission to the Department of Agriculture (Department). Effective December 16, 1998, the Department will register commercial propagators of fish as well as dealers in live aquatic animals. The Commission will no longer issue artificial propagation licenses, live fish, fishbait and baitfish dealer licenses and resident and nonresident fish transportation licenses.

   The Commission has been working with the Department to ensure smooth implementation of the amendment. In addition, the Commission has been reviewing the amendment to determine whether it has left any holes in the Commission's authority. Act 94 repealed Chapter 33 of the code (relating to propagation and sale of fish). In general, this repeal does not diminish the Commission's authority to protect this Commonwealth's waters and the fish in those waters. The Commission retains regulatory jurisdiction under section 2102(c) of the code over transportation or introduction of fish into this Commonwealth's waters, exporting of fish, sale, offering for sale or purchase of fish and the disturbing of fish in their natural habitat. Violations are summary offenses of the second degree. The Commission retains authority to license use of nets and regulated fishing lakes. The Commission's general statutory authority to make regulations for the protection, preservation and management of fish and fish habitat gives the agency regulatory authority over stocking of fish.

   The Commission's enforcement officers have clear authority to enforce the prohibitions in the new law since it is a Commonwealth law related to fish. While the Department will have primary authority to enforce this law, it is certainly possible that the Commission's officers could become involved in enforcement where an unregistered propagator or dealer unlawfully sells fish. The wording of the new provisions on sale of fish defines prohibited and permitted acts with regard to sale of fish, 3 Pa.C.S. §§ 4221 and 4223 (relating to activities under registration for artificial propagation; and prohibited propagation and penalties). It is clear that only registered artificial propagators and dealers may sell fish and that they may not sell fish except those taken from the specified facilities. Registered propagators are not authorized to take fish out of natural streams on their property or from any other waters of this Commonwealth for the purpose of sale.

   The Commission has adopted a regulation on sale of fish that is clearly applicable to all Commonwealth waters and all persons taking fish from those waters.

F.  Paperwork

   The amendment will not increase paperwork and will create no new paperwork requirements.

G.  Fiscal Impact

   The amendment will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The amendment will impose no new costs on the private sector or the general public.

H.  Public Involvement

   A notice of proposed rulemaking containing the proposed amendment was published at 29 Pa.B. 205 (January 9, 1999). The Commission did not receive any public comments regarding this proposal.

Findings

   The Commission finds that:

   (1)  Public notice of intention to adopt the amendment 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 promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided and no comments were received.

   (3)  The adoption of the amendment of the Commission in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statutes.

Order

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

   (a)  The regulations of the Commission, 58 Pa. Code Chapter 63, are amended by amending § 63.19 to read as set forth at 29 Pa.B. 205.

   (b)  The Executive Director will submit this order and 29 Pa.B. 205 to the Office of Attorney General for approval as to legality as required by law.

   (c)  The Executive Director shall certify this order and 29 Pa.B. 205 and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect immediately upon publication in the Pennsylvania Bulletin.

PETER A. COLANGELO,   
Executive Director

   Fiscal Note:  Fiscal Note 48A-89 remains valid for the final adoption of the subject regulation.

[Pa.B. Doc. No. 99-1009. Filed for public inspection June 25, 1999, 9:00 a.m.]


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