PROPOSED RULEMAKING
[58 PA. CODE CHS. 63, 71 AND 73]
Injurious Nonnative Species
[33 Pa.B. 2762] The Fish and Boat Commission (Commission) proposes to amend Chapters 63, 71 and 73 (relating to general fishing regulations; propagation and introduction of fish into Commonwealth waters; and transportation of live fish into this Commonwealth). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The proposed rulemaking relates to injurious, nonnative species.
A. Effective Date
The proposed rulemaking, if approved on final-form, will go into effect upon publication of an order in the Pennsylvania Bulletin.
B. Contact Person
For further information on the proposed rulemaking, contact Laurie E. Shepler, Assistant Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This proposal is available electronically through the Commission's website (http://www.fish.state.pa.us).
C. Statutory Authority
The proposed rulemaking is published under the statutory authority of section 2102 of the code (relating to rules and regulations).
D. Purpose and Background
The proposed rulemaking is designed to update, modify and improve the Commission's regulations pertaining to fishing. The specific purpose of the proposed rulemaking is described in more detail under the summary of proposal.
E. Summary of Proposal
Black carp (Mylopharyngodon piceus), bighead carp (Hypophtalmichtys nobilis) and silver carp (Hypophtalmichtys molitrix) are native to Asia. They are not native to this Commonwealth. These species were originally imported by fish farmers into waters of several states in the lower Mississippi River Valley. Black carp are mollusk eaters imported to control snails in culture ponds. Silver and bighead carp are plankton feeders, which have been cultured for sale as food fish in specialty food markets. Because black carp consume mollusks, there is concern that if released they would prey on native mussel populations. In July 2002, the United States Fish and Wildlife Service issued a notice of proposed rulemaking to list the black carp as an injurious fish species. Silver and bighead carp are capable of attaining weights of 60 and 90 pounds, respectively. Because they forage on phytoplankton and zooplankton, there is concern that food sources for forage fishes will be reduced and aquatic food chains upset. Bighead carp have escaped to the wild and have made their way towards the Great Lakes via the Upper Mississippi River system. Last year, a bighead carp was found in Lake Erie and several were found in other Great Lakes. It has recently been determined that this species can thrive and reproduce in a wider range of water temperatures and habitats than previously believed.
Several years ago, the Commission's Bureaus of Fisheries and Law Enforcement became aware that a fish dealer from Arkansas was transporting Asian carp through this Commonwealth to live fish markets in New York. The investigation revealed that the trucks were stopping at a stream in southcentral Pennsylvania to discharge tank water and add fresh water from the stream. The fish dealer and the hauler were notified that these activities were not lawful. This example emphasizes how easily injurious nonnative species could be released into Commonwealth waters.
The zebra mussel (Dreissena polymorpha) and the quagga mussel (Dreissena bugensis) are well known nonnative species introduced to the Great Lakes and Lake Erie by means of ballast water discharges in the late 1980s. The zebra mussel also has infiltrated this Commonwealth by means of the Ohio River in southwest Pennsylvania. Recently, it was found in several tributaries to the upper Allegheny River. Transfer of this species to inland waters is usually unintentional and likely the result of attachment to recreational boats. However, there is evidence that some persons may have intentionally transported zebra mussels into flooded quarries where SCUBA diving occurs to aid in clearing up the water. In addition to a quarry in southeastern Pennsylvania, there is a well-documented zebra mussel population in a dive quarry in Virginia. These species out compete and smother native mussels, foul water intakes and dramatically alter the water quality of areas they invade.
The round goby (Neogobius melanostomus) is a more recent invader to Lake Erie and the other Great Lakes. Population densities of this species have dramatically increased in Lake Erie, reaching densities in some areas of over 3,000 gobies/acre. Currently, there is no evidence to suggest that round gobies are present in any inland Commonwealth waters. However, they have caused considerable changes to the predator-prey relationships in Lake Erie. This species has demonstrated that it can out compete and displace native darters and sculpins. They can adapt to a variety of habitats and have the ability to spawn up to six times per year. This species represents a serious threat to native fish populations in inland waters. Additionally, another goby species, the tubenose goby (Proterorhinus marmoratus), has recently appeared in Lake Erie.
The Mississippi Interstate Cooperative Resource Association, of which the Commonwealth is a member, has publicly stated its opposition to the use or release of Asian carp, particularly the black carp. At its March 2003 meeting, members of the Lake Erie Committee of the Great Lakes Fishery Commission agreed that member states should move forward with regulations that specifically prohibit the possession, transport and introduction of the Asian carp species. On February 7, 2003, member state Michigan enacted new regulations that prohibit the possession and transportation of the aforementioned species plus several additional species.
Although it already is illegal under the Commonwealth's laws and regulations for anyone to release live black carp, silver carp, bighead carp, zebra mussels, quagga mussels or round gobies into Commonwealth waters, it currently is not illegal to possess, transport, offer for sale or purchase these species. Accordingly, the Commission proposes the amendments set forth in Annex A to address this issue and to further emphasize that it is unlawful to possess, introduce, import and transport these species in this Commonwealth.
F. Paperwork
The proposed rulemaking will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will impose no new costs on the private sector or the general public.
H. Public Comments
Interested persons are invited to submit written comments, objections or suggestions regarding the proposed rulemaking to the Executive Director, Fish and Boat Commission, P. O. Box 67000, Harrisburg, PA 17106-7000, within 30 days after publication of this notice in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.
Comments also may be submitted electronically to ra-pfbcregs@state.pa.us. A subject heading of the proposal and a return name and address must be included in each transmission. In addition, all electronic comments must be contained in the text of the transmission, not in an attachment. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
PETER A. COLANGELO,
Executive DirectorFiscal Note: 48A-143. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 63. GENERAL FISHING REGULATIONS § 63.46. Sale, purchase or barter of [live snakehead] injurious, nonnative species.
It is unlawful for a person to sell, purchase, offer for sale or barter the following live [snakehead] species in this Commonwealth[.]:
(1) Snakehead (all species).
(2) Black carp (Mylopharyngodon piceus).
(3) Bighead carp (Hypophtalmichtys nobilis).
(4) Silver carp (Hypophtalmichtys molitrix).
(5) Zebra mussel (Dreissena polymorpha).
(6) Quagga mussel (Dreissena bugensis).
(7) Round goby (Neogobius melanostomus).
(8) Tubenose goby (Proterorhinus marmoratus).
CHAPTER 71. PROPAGATION AND INTRODUCTION OF FISH INTO COMMONWEALTH WATERS § 71.6. Prohibited acts.
* * * * * (d) It is unlawful to possess the following live [snakehead] species in this Commonwealth. It is unlawful to introduce or import the following live [snakehead] species into the waters of this Commonwealth[.]:
(1) Snakehead (all species).
(2) Black carp (Mylopharyngodon piceus).
(3) Bighead carp (Hypophtalmichtys nobilis).
(4) Silver carp (Hypophtalmichtys molitrix).
(5) Zebra mussel (Dreissena polymorpha).
(6) Quagga mussel (Dreissena bugensis).
(7) Round goby (Neogobius melanostomus).
(8) Tubenose goby (Proterorhinus marmoratus).
CHAPTER 73. TRANSPORTATION OF LIVE FISH INTO THIS COMMONWEALTH § 73.1. Transportation.
* * * * * (d) Transportation of the following live [snakehead] species in or through this Commonwealth is prohibited[.]:
(1) Snakehead (all species).
(2) Black carp (Mylopharyngodon piceus).
(3) Bighead carp (Hypophtalmichtys nobilis).
(4) Silver carp (Hypophtalmichtys molitrix).
(5) Zebra mussel (Dreissena polymorpha).
(6) Quagga mussel (Dreissena bugensis).
(7) Round goby (Neogobius melanostomus).
(8) Tubenose goby (Proterorhinus marmoratus).
[Pa.B. Doc. No. 03-1120. Filed for public inspection June 13, 2003, 9:00 a.m.]
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