PROPOSED RULEMAKING
[58 PA. CODE CH. 79]
Reptiles and Amphibians
[36 Pa.B. 2724]
[Saturday, June 3, 2006]The Fish and Boat Commission (Commission) proposes to add §§ 79.8, 79.11 and 79.12 (relating to artificial propagation and dealers of live aquatic animals; introduction; and color morphs). 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 updates and improves the Commission's reptile and amphibian regulations to provide for the greater protection and management of these resources.
A. Effective Date
The proposed rulemaking, if approved on final-form rulemaking, will go into effect on January 1, 2007.
B. Contact Person
For further information on the proposed rulemaking, contact Laurie E. Shepler, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This proposed rulemaking is available on the Commission's website at www.fish.state.pa.us.
C. Statutory Authority
Proposed §§ 79.8, 79.11 and 79.12 are 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 improve, enhance and update the Commission's regulations pertaining to reptiles and amphibians. The specific purpose of the proposed regulations is described in more detail under the summary of proposals.
On two occasions, the Commission has published proposed rulemakings soliciting public comments regarding its proposed reptile and amphibians regulations. The first proposed rulemaking was published at 35 Pa.B. 5683 (October 15, 2005). The second proposed rulemaking was published at 36 Pa.B. 1220 (March 18, 2006). Upon closer review of the proposed regulations in the second proposed rulemaking, the Commission determined that several issues require additional clarification. They are artificial propagation and dealers of live aquatic animals, introduction and color morphs.
(Editor's Note: The rescission of Chapter 77 was included in the proposal published at 36 Pa.B. 1220).
E. Summary of Proposals
(1) Section 79.8: Although the second proposed rulemaking broadly addresses artificial propagation of reptiles and amphibians, it does not address the more specific issue of closed system propagation. Closed systems are designed to prevent release or escape of animals from the system. Closed system propagation, primarily in the context of fin fish, is already addressed in Chapter 71 (relating to propagation and introduction of fish into Commonwealth waters), and the proposed closed system provisions pertaining to reptiles and amphibians in § 79.8 resemble the provisions in Chapter 71. Under the proposed regulation, the Commission will maintain two lists of species of reptiles and amphibians that are approved for artificial propagation--one containing species approved for open systems and another containing species approved for closed systems. Currently, bullfrogs and green frogs are on the list of species approved for open system propagation under Chapter 71 and will be approved for open system propagation under proposed Chapter 79. Commission staff do not intend to recommend other native species of reptiles and amphibians for open system propagation. A list of species approved for closed system propagation will include all nonnative species except those specifically prohibited by the Commission and color morphs of certain native species. The list of color morphs will be developed with input from commercial propagators and hobby breeders.
(2) Section 79.11: Although the introduction of nonnative species is addressed in the second proposed rulemaking, the introduction of native species is not. Like propagation, introduction of native species is already addressed in the broad context of Chapter 71. However, for purposes of completeness, provisions dealing with the introduction of native species of reptiles and amphibians should be included in the proposed Chapter 79. Proposed § 79.11 provides that as a general rule, native species of reptiles and amphibians may be introduced onto lands and into waters of this Commonwealth only when the Commission has approved the native species for introduction. Similar to propagation, the Commission will maintain a list of native species that it has approved for introduction. There is an exception to the general rule that allows a person who lawfully catches and possesses a reptile or amphibian in this Commonwealth to reintroduce that animal into the wild if certain conditions are met.
(3) Section 79.12: The Commission has determined that the provisions of § 79.12 as in the second proposed rulemaking should be modified to clarify that color morphs of native species designated by the Commission may be artificially propagated provided they are not taken from the wild and they are propagated in a closed system meeting the requirements of § 79.8.
The Commission proposes to add these sections as set forth in Annex A.
F. Paperwork
The proposed rulemaking will increase paperwork slightly in that the Commission will maintain two separate lists of species of reptiles and amphibians that are approved for artificial propagation--one containing species approved for open systems and another containing species approved for closed systems. The Commission already maintains a list of species approved for open system propagation under Chapter 71, which contains two frog species. The Commission will now maintain separate lists for reptiles and amphibians.
The proposed rulemaking will create no new paperwork requirements in that the requirement for registration with the Department of Agriculture (Department) as an artificial propagator or as a dealer of live aquatic animals is in 3 Pa.C.S. Chapter 42 (relating to Aquaculture Development Law) (act), not the Commission's proposed regulations. Under section 4220 of the act (relating to registration for artificial propagation), the Department may register applicants for artificial propagation upon receipt of a written application and payment of a registration fee of $150. Section 4222 of the act (relating to registration for dealers of live aquatic animals) provides that the Department may register applicants wishing to become dealers of live aquatic animals upon receipt of a written application and payment of a registration fee of $50.
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. As previously described, the act requires persons wishing to become artificial propagators or dealers of live reptiles and amphibians to register with the Department.
H. Public Comments
Interested persons are invited to submit written comments, objections or suggestions about 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 by completing the form at www.state.pa.us/Fish/regcomments. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt. Electronic comments submitted in any other manner will not be accepted.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: 48A-184. Nonfiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 79. REPTILES AND AMPHIBIANS (Editor's Note: The following text is new and is printed in regular type to enhance readability.)
§ 79.8. Artificial propagation and dealers of live aquatic animals.
(a) General. Except for hobby breeders and pet stores as defined in 3 Pa.C.S. Chapter 42 (relating to aquaculture development), it is unlawful to artificially propagate or deal in live reptiles and amphibians without being registered with the Department of Agriculture (Department) under 3 Pa.C.S. Chapter 42. It is unlawful for anyone, regardless of whether or not registered, to artificially propagate reptiles and amphibians except those species, subspecies and color morphs that the Commission has approved for artificial propagation in this Commonwealth in accordance with this section.
(b) Approved lists. The Bureau of Fisheries will maintain lists of species, subspecies and color morphs for which the Department may issue registrations for artificial propagation and registrations for dealers of live aquatic animals. The Bureau of Fisheries will maintain two separate lists--one that the Commission has approved for artificial propagation in an open system and one that the Commission has approved for artificial propagation in a closed system or a system with discharges rendered incapable of containing self-perpetuating living organisms. The Director of the Bureau of Fisheries may update or modify the lists of approved species, subspecies and color morphs by adding species, subspecies or color morphs to or deleting species, subspecies or color morphs from the lists as necessary for the protection and management of reptiles and amphibians in this Commonwealth. The Commission will provide the lists to the Department on or before January 31 each year and whenever the Commission updates or modifies the lists. Copies of the lists of approved species, subspecies and color morphs are available upon request from the Pennsylvania Fish and Boat Commission, Bureau of Fisheries, 450 Robinson Lane, Bellefonte, Pennsylvania 16823.
(c) Open systems. Reptiles and amphibians may be artificially propagated or held by dealers in an open system only when the Commission has approved the species, subspecies or color morphs for artificial propagation in an open system.
(d) Closed systems or systems with discharges rendered incapable of containing self-perpetuating living organisms.
(1) Reptiles and amphibians may be artificially propagated or held by dealers in a closed system or in a system with discharges rendered incapable of containing self-perpetuating living organisms that meets the requirements of this subsection only when the Commission has approved the species, subspecies or color morphs for artificial propagation in a closed system or a system with discharges rendered incapable of containing self-perpetuating living organisms.
(2) To artificially propagate or deal in live reptiles and amphibians in a closed system, an applicant for registration shall certify that all of the following conditions are met:
(i) The closed system will be housed indoors in a structure enclosed by solid walls, floor and roof. For purposes of this paragraph, a wall, floor or roof will be considered ''solid'' if it is constructed and maintained to prevent unauthorized human or animal intrusions into the closed system facility and to prevent release or escape of live reptiles or amphibians from the closed system.
(ii) If water will be used in normal operations, no discharge will be allowed onto the lands or into the waters of this Commonwealth.
(iii) Water will be added to the system only for making up evaporative loss, cleaning, harvesting or consumption.
(iv) No live reptiles or amphibians or live reptile or amphibian eggs will be permitted to escape. Accidental escape, spillage or loss of live reptiles or amphibians including their eggs will be contained within the facility in a manner that prevents the reptiles and amphibians or their eggs from escaping onto the lands or into the waters of this Commonwealth.
(3) To artificially propagate or deal in live reptiles and amphibians in a system with discharges rendered incapable of containing self-perpetuating living organisms, an applicant for registration shall certify that one of the following conditions is met:
(i) Discharged water will be subject to treatment processes that will destroy living organisms.
(ii) Water will be discharged in a manner that living organisms cannot survive.
(4) The Commission may request from the Department a list of registered propagators and dealers that hold reptiles and amphibians in closed systems or systems with discharges rendered incapable of containing self-perpetuating living organisms. The Commission, in its discretion, may inspect these systems to ensure that they are designed and constructed in a manner to prevent escape of live reptiles or amphibians or their live eggs onto lands or into the waters of this Commonwealth or so that their discharges are rendered incapable of containing live amphibians or reptiles or their eggs. In addition, the Commission, in its discretion, may inspect these systems at any time to ensure compliance with this subsection, and the Commission may issue an order to suspend operations of any of these systems when an inspection discloses that it is not in compliance with this subsection.
(5) The Commission will invite the Department's Aquaculture Advisory Committee or a subcommittee thereof to draft and periodically update construction guidelines for closed system propagators and dealers to help them ensure closed systems prevent escape of reptiles and amphibians onto the lands or into the waters of this Commonwealth. These guidelines will assist registered propagators and dealers in the design, construction and maintenance of closed systems and will assist the Commission in inspecting these systems.
(6) It is unlawful for an operator of a system described in this subsection to allow live reptiles or amphibians to escape onto lands or into the waters of this Commonwealth.
(7) A registered operator of any system described in this subsection shall develop, maintain and make available for immediate inspection by the Commission and the Department upon request a written plan for containing or treating discharged animals in the event of a closed system failure .
(8) A registered operator of any system described in this subsection shall notify both the Commission's Director of the Bureau of Fisheries and the Department's Aquaculture Coordinator immediately in the event of an escape or a discharge failure that is likely to contain viable living organisms.
§ 79.11. Introduction.
(a) Nonnative species. It is unlawful to introduce any species of reptile or amphibian into the natural environment of this Commonwealth if that species is not native to this Commonwealth. Persons who import nonnative reptiles or amphibians into this Commonwealth shall institute appropriate safeguards to prevent their introduction into the environment of this Commonwealth.
(b) Native species.
(1) General rule. Except as otherwise provided in this subsection, native species of reptiles and amphibians may be introduced into the natural environment of this Commonwealth only when the Commission has approved the native species for introduction. Except as otherwise provided in this subsection, it is unlawful to introduce or facilitate the introduction of native species of reptiles and amphibians except those native species that the Commission has approved for introduction. The Commission will maintain a list of native species that the Commission has approved for introduction. The Director of the Bureau of Fisheries may update or modify the list of approved species by adding species to or deleting species from the list as necessary for the protection and management of reptiles and amphibians in this Commonwealth. Copies of the list of approved species are available upon request from the Pennsylvania Fish and Boat Commission, Bureau of Fisheries, 450 Robinson Lane, Bellefonte, PA 16823.
(2) Exception. A person who lawfully catches and possesses a reptile or amphibian in accordance with § 79.3 (relating to season and daily possession limits) may reintroduce that reptile or amphibian into the natural environment of this Commonwealth as long as the following conditions are met:
(i) The person other than a Commission-recognized rehabilitator releases the reptile or amphibian to the point of capture. If the point of capture is unknown, a Commission-recognized rehabilitator may release the animal to appropriate habitat.
(ii) The person other than a Commission-recognized rehabilitator releases the reptile or amphibian within 30 days of capture. A Commission-recognized rehabilitator may release the animal more than 30 days after capture.
(iii) The person releases the reptile or amphibian during the period, May 1 through Labor Day.
(iv) The reptile or amphibian is in good health.
§ 79.12. Color morphs.
For purposes of this chapter, it is presumed that color morphs of certain native species that are held in captivity were not taken from the wild. Therefore, the Commission has determined that color morphs of certain native species are exempt from the requirements of this chapter as provided in this section. The Commission will publish in the Pennsylvania Bulletin a list of color morphs of native species to which the following provisions apply:
(1) Color morphs of native species designated by the Commission are not subject to the possession limits of § 79.3 (relating to season and daily possession limits) provided they are not taken from the wild.
(2) Color morphs of native species designated by the Commission may be artificially propagated provided they are not taken from the wild and they are propagated in a closed system meeting the requirements of § 79.8 (relating to artificial propagation and dealers of live aquatic animals).
(3) Color morphs of native species designated by the Commission may be sold provided they are not taken from the wild.
[Pa.B. Doc. No. 06-981. Filed for public inspection June 2, 2006, 9:00 a.m.]
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