RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 63, 71 AND 73]
Injurious Nonnative Species
[33 Pa.B. 4447] The Fish and Boat Commission (Commission) amends 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 final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). This final-form rulemaking relates to injurious, nonnative species.
A. Effective Date
This final-form rulemaking will go into effect upon publication of this order in the Pennsylvania Bulletin.
B. Contact Person
For further information on this final-form rulemaking, contact Laurie E. Shepler, Assistant Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This final-form rulemaking is available electronically through the Commission's website (http://www.fish.state.pa.us).
C. Statutory Authority
This final-form rulemaking is published under the statutory authority of section 2102 of the code (relating to rules and regulations).
D. Purpose and Background
This final-form rulemaking is designed to update, modify and improve the Commission's regulations pertaining to fishing. The specific purpose of this rulemaking is described in more detail under the summary of changes.
E. Summary of Changes
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 from 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 non-native species introduced to the Great Lakes and Lake Erie from 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 aforementioned 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 Commonwealth 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 proposed to amend these sections to address this issue and to further emphasize that it is unlawful to possess, introduce, import and transport these species in this Commonwealth.
On final-form rulemaking, the Commission adopted the amendments to §§ 63.46, 71.6 and 73.1 to read as set forth in Annex A and added the European rudd (Scardinius erythropthalmus) to the list of species contained in these sections. The European rudd, a member of the minnow family, is native to the waters of western Europe and Asia. They have been reported to occur in at least 20 states. Documented sightings in this Commonwealth previously have been limited to a report of a single rudd captured in Lake Winola, Wyoming County, in 1991. However, several rudd were captured on May 22, 2003, in the waters of Presque Isle Bay off of Lake Erie by a team of biologists from the Department of Environmental Protection and the Erie County Department of Health. A Commission biologist verified the identification. This find confirms that this species does indeed inhabit Commonwealth waters of Lake Erie.
Rudd are identified by the deep red coloration of their fins. In addition, the iris around the pupil of their eyes is red. Large, golden-colored scales cover their body. Rudd have reportedly reached lengths of up to 17 inches, but the average rudd is unlikely to exceed 12--14 inches. Rudd are similar in appearance to the commonly occurring golden shiner (Notemigonus chrysoleucas), which is found throughout this Commonwealth and is a staple of bait shops. Golden shiners, however, are native to this Commonwealth. The golden shiner can reach lengths similar to the rudd and has lighter golden colored scales. However, golden shiners lack the rudd's red iris, red fins and scales on the keel or belly area between the pelvic fins and anus.
Research has shown that rudd can hybridize with golden shiners. It is unknown what impact, if any, the hybridizations may have on native populations. Rudd and golden shiners are both known to consume aquatic invertebrates. Thus, rudd may also compete with native species for food resources. Without specific research to rely on, it is difficult to speculate on the impacts that rudd may have on native species in this Commonwealth. It is believed that most introductions of rudd in the United States resulted from unused or released bait.
F. Paperwork
This final-form rulemaking will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
This final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. This final-form rulemaking will impose no new costs on the private sector or the general public.
H. Public Involvement
A notice of proposed rulemaking was published at 33 Pa.B. 2762 (June 14, 2003). The Commission received three public comments. One commentator supported the proposed amendments but also urged the Commission to include flathead catfish to the list of species set forth in §§ 63.46, 71.6 and 73.1. The Commission considered this suggestion and believed that it would not be appropriate to include on these lists a species that has persisted for years (in the native range) and is well established in much of the southern Susquehanna and Delaware River drainages. A second commentator asked the Commission to reconsider the proposed amendments because there may be responsible owners of exotic species who wish to keep them in a private environment for their personal enjoyment. A third commentator supported the proposal but had concerns regarding practical issues that could arise.
Findings
The Commission finds that:
(1) Public notice of intention to adopt the 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) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided, and the comments received were considered.
(3) The adoption of the amendments 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 Chapters 63, 71 and 73, are amended by amending §§ 63.46, 71.6 and 73.1 to read as set forth in Annex A.
(b) The Deputy Executive Director will submit this order and Annex A to the Office of Attorney General for approval as to legality as required by law.
(c) The Deputy Executive Director shall certify this order and Annex A 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.
DENNIS T. GUISE,
Deputy Executive DirectorFiscal Note: Fiscal Note 48A-143 remains valid for the final adoption of the subject regulations.
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 injurious, nonnative species.
It is unlawful for a person to sell, purchase, offer for sale or barter the following live 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).
(9) European rudd (Scardinius erythropthalmus).
CHAPTER 71. PROPAGATION AND INTRODUCTION OF FISH INTO COMMONWEALTH WATERS § 71.6. Prohibited acts.
(a) Except as otherwise provided in § 71.7 (relating to triploid grass carp), it is unlawful to introduce or import grass carp (white amur) into this Commonwealth. Except as otherwise provided in § 71.7, it is unlawful to posses grass carp (white amur) in this Commonwealth.
(b) It is unlawful to introduce tilapia, including blue tilapia and tilapia hybrids, into the waters of this Commonwealth.
(c) As an exception to subsection (a), §§ 1.1 and 73.1 (relating to general; and transportation), the Executive Director may authorize the Research Division of the Bureau of Fisheries to possess grass carp (white amur) and introduce them into waters within the confines of the Commonwealth hatchery system as part of a carefully controlled research effort, subject to conditions as the Executive Director may prescribe.
(d) It is unlawful to possess the following live species in this Commonwealth. It is unlawful to introduce or import the following live 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).
(9) European rudd (Scardinius erythropthalmus).
CHAPTER 73. TRANSPORTATION OF LIVE FISH INTO THIS COMMONWEALTH § 73.1. Transportation.
(a) Species of fish may not be transported into this Commonwealth from another state, province or country and liberated in a watershed of this Commonwealth without previous written permission from the Commission, nor may a species of fish be transferred from waters in this Commonwealth into another drainage of this Commonwealth where this particular species is not always present without prior written consent from the Commission. Inspection for species composition or presence of disease, or both, will be required at the discretion of the Commission on all lots of fish transported into this Commonwealth.
(b) Permission is not required for the importation of tropical fish unless the Commission considers them to be potentially dangerous to native fish species or to man. Permission is not required for the stocking of farm ponds or licensed fee fishing ponds which receive fish stocks from Commonwealth commercial fish hatcheries except for the following kinds of fish: goldfish, golden orfe or fish species not native to this Commonwealth.
(c) Except as provided in § 71.7 (relating to triploid grass carp), transportation of the grass carp (white amur) in this Commonwealth is prohibited.
(d) Transportation of the following live 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).
(9) European rudd (Scardinus erythropthalmus).
[Pa.B. Doc. No. 03-1743. Filed for public inspection September 5, 2003, 9:00 a.m.]
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