RULES AND REGULATIONS
Title 58—RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 57, 63, 71, 71a AND 73]
Fishing; Propagation and Introduction of Fish into Commonwealth Waters
[53 Pa.B. 5914]
[Saturday, September 23, 2023]The Fish and Boat Commission (Commission) deletes Chapters 71 and 73. The Commission regulated the introduction and transportation of fish into this Commonwealth through Chapters 71 and 73. In addition, both chapters contained provisions concerning artificial propagation, stocking of Commission fish, prohibited species, triploid grass carp and species susceptible to viral hemorrhagic septicemia (VHS). This final-form rulemaking updates the regulations to address current conservation challenges, improve fisheries management and fish health, and simplify the chapters for consistency, flow and ease. Therefore, the addition of new provisions, such as a Notice of Stocking (NOS), retention of some existing language, and the consolidation of Chapters 71 and 73 into a single chapter accomplishes the goals set forth.
To facilitate the implementation of an NOS, fish health requirements and watercraft inspection necessities, the Commission submits this final-form rulemaking that deletes and reserves Chapters 71 and 73 and adds Chapter 71a (relating to propagation and introduction of fish into Commonwealth waters). The Commission also submits final-form rulemaking amendments for §§ 57.8a and 63.51 (relating to Class A wild trout streams; and sale of VHS-susceptible species of fish) that update the citations to align with Chapter 71a. This final-form rulemaking is set forth in Annex A.
A. Effective Date
Unless otherwise specified in Chapter 71a, this final-form rulemaking will go into effect January 1, 2024.
B. Contact Person
For further information on this final-form rulemaking, contact Renae Kluk Kiehl, Esq., P.O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This final-form rulemaking is available on the Commission's web site at www.fishandboat.com.
C. Statutory Authority
The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The deletion of Chapters 71 and 73, the addition of Chapter 71a and the amendments to §§ 57.8a and 63.51 are published under the statutory authority of section 2102(a) and (c) of the code (relating to rules and regulations).
D. Purpose and Background
In this Commonwealth, thousands of lakes, ponds and stream sections are stocked by private individuals each year. To improve the Commission's understanding of stockings occurring in this Commonwealth, protect aquatic resources and address increased risks associated with aquatic invasive species and pathogens, there is a need to collect information on non-Commission fish stockings occurring in this Commonwealth. Commission staff have undertaken an effort to improve management and oversight of fish and aquatic life transportation and stocking in this Commonwealth through the development of an NOS.
In the United States, over 30 states have requirements for tracking how and when fish are stocked in state waters. Notably, all states in the Northeast except Pennsylvania, require some form of documentation when individuals or entities stock fish in state waters. Section 2102 of the code allows the Commission to develop rules and regulations concerning fish and fishing in waters of this Commonwealth, and for the protection, preservation and management of fish and fish habitat. Regulations may be developed for the transport, introduction, import and export of fish, as well as inspection for disease. Section 73.1 addressed this topic; however, there is need for updated regulations to ensure adequate protection, preservation and management of aquatic resources are in place.
In conjunction with the creation of the NOS, Commission staff have also developed a fish health inspection protocol to provide additional protection to the Commonwealth's aquatic resources, prevent the introduction of serious pathogens not known to be present in this Commonwealth, and to control the spread and the prevalence of pathogens already present in this Commonwealth. The Commission recognizes that the NOS requirement, fish health inspection protocol and accompanying regulations will result in changes to the stockings undertaken by private individuals and the aquaculture industry. Implementation of an NOS and applicable fish health requirements will strike a balance of avoiding serious ecological and financial damages to this Commonwealth's aquatic resources and aquaculture industry, while still allowing interested persons to stock fish for angling purposes.
In addition to stocking and fish health necessities, watercraft inspection requirements can prevent the spread of aquatic invasive species by watercraft throughout this Commonwealth. For example, in 2021, invasive zebra mussels were discovered in Raystown Lake in Huntingdon County and were likely introduced by a watercraft. Boaters (with limited exceptions) will be required to drain live wells and bilges by removing the drain plug before transporting watercraft away from a water of this Commonwealth. Moreover, boaters will be prohibited from placing a watercraft, trailer or related equipment into a water of this Commonwealth if aquatic plants or prohibited species are present. At least 19 states have created watercraft inspection or decontamination programs.
In addition, Commission staff have created a regulatory section that prohibits the release or disposal of live bait fish into waters of this Commonwealth. An individual may continue to collect live bait fish for angling purposes, provided that a bait fish species is not transferred into another drainage the species is not already present.
Besides the creation of new regulatory provisions as outlined previously, Commission staff retained several existing sections from Chapters 71 and 73 relating to closed system propagation, introduction and transportation of VHS-susceptible species, stocking of designated waters and Commission fish, triploid grass carp requirements and prohibited species. Through the inclusion of new sections and the retention of existing language, Commission staff believe Chapter 71a provides adequate protection for this Commonwealth's aquatic resources in relation to current conservation challenges, aligns with the regulations of several neighboring states, and provides improved flow and clarity for regulatory interpretation.
A notice of proposed rulemaking was published at 52 Pa.B. 3423 (June 18, 2022). The Commission received a total of 1,073 public comments regarding the initial proposal: 88 supported the proposal, 56 supported portions of the proposal, 523 opposed the proposal, 306 opposed portions of the proposal and 100 did not pertain to the proposal. Upon consideration of these comments, feedback received from numerous stakeholders and public, and further review of the proposed rulemaking brought before the Commission at the April 25, 2022, quarterly Commission meeting, the Commission conducted Fisheries and Hatcheries Committee meetings on September 28, 2022; January 4, 2023; April 5, 2023; and June 27, 2023, to further consider and refine the proposal. In addition to Commission and committee meetings, Commission staff actively pursued outreach efforts to solicit additional feedback from various stakeholders through participation and presentation at multiple meetings with the Pennsylvania Aquaculture Advisory Committee, the Department of Agriculture, Commission cooperative nurseries and private fishing clubs. Throughout this process, revised drafts of the proposal were shared with stakeholders to solicit feedback.
E. Summary of Changes
The broad rationale for the proposed changes is set forth previously in the Purpose and Background section. After multiple Commission Board and Committee meetings and multiple opportunities for public comment, amendments were made to this final-form rulemaking to address concerns brought forth by the public and industry. Those changes narrow the scope of the original proposed rulemaking as it was published at 52 Pa.B. 3423 and include:
§ 71a.1. Authority and definitions
• Definition of ''ornamental pond'' is added to clarify what is not subject to an NOS requirement.
§ 71a.2. General
• This section is updated to reflect an NOS requirement, instead of a stocking authorization.
§ 71a.3. Fish propagation and introductions list
• Replaces stocking authorization language with ''written approval from Commission'' for potential stocking of genetically modified fish because of the NOS update.
§ 71a.5. Notice of Stocking to the Commission
• Eliminates reference to a stocking authorization for consistency and put focus on an NOS requirement to gather stocking data.
• Eliminates language requiring a person to ensure water used to transport fish was free of injurious pathogens due to the practical challenges of testing and compliance.
• Eliminates language that a stocking authorization may be amended by the Commission because an NOS will not require approval to stock.
• Eliminates all language referring to staff review, appeals, procedure and final agency action on a stocking authorization because an NOS will not be approved or denied by staff.
• Updates the effective date of the section to make the NOS effective on January 1, 2024.
• Inserts language to clarify species approved for stocking through an NOS includes those on the Propagation and Introduction list (for example: a stray bluegill is stocked on a truck full of bass but both species can be stocked Statewide).
• Inserts a subsection that uses identical language as in deleted § 73.1 with a focus on not stocking fish species in watersheds where they are not present, as well as reserving authority for the agency to require fish health inspections on lots of fish transported into this Commonwealth.
• Inserts a subsection clarifying an NOS does not allow individuals to stock waters with fish currently prohibited from stocking.
§ 71a.6. Fish health certificate requirements
• Eliminates language that prohibits fish from being stocked with visible lesions, hemorrhaging, fungi and signs of disease because aquaculture propagators currently engage in the practice of stocking healthy fish.
• Updates the effective date of the fish health protocol to January 1, 2026.
§ 71a.7. Introduction or transportation of VHS-susceptible species of fish
• Updates the definition of ''VHS-susceptible species'' to include the World Organization for Animal Health's Aquatic Manual and species listed in the Commission's Propagation and Introduction list.
§ 71a.11. Prohibited species
• Removes reference to aquatic noxious weeds in the prohibited species list because of enforcement challenges and plant identification difficulties; instead, the watercraft inspection requirements section will have the same practical effect.
• Removes New Zealand mudsnail from the prohibited species list because of organisms in trade limitations and compliance challenges.
§ 71a.13. Bait fish importation and use
• Replaces stocking authorization language with NOS language.
To facilitate the implementation of an NOS, fish health requirements and watercraft inspection necessities, the Commission deletes and reserves Chapters 71 and 73 and adds Chapter 71a. The Commission amends §§ 57.8a and 63.51 to update the citations to align with Chapter 71a.
F. Paperwork
This final-form rulemaking will increase paperwork and will create new paperwork requirements in that persons intending to stock fish in waters of this Commonwealth will submit an NOS to the Commission. In addition, persons transporting fish into this Commonwealth or stocking fish in the waters of this Commonwealth, may be required to possess a fish health certificate when conducting those activities to ensure fish are free of specific pathogens, diseases or parasites.
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 have an estimated adverse impact of approximately $1.3 million on the Commission. This is the cost to develop, implement and maintain the proposed NOS process and will be spread over 7 fiscal years. In addition, this final-form rulemaking will impose new costs on the private sector in that prior to fish being imported into this Commonwealth or stocked in waters of this Commonwealth, the fish or artificial propagation facility where the fish are raised will have to be tested and certified as negative for specific pathogens, diseases and parasites as determined by the Commission. Many of these requirements are already in place in neighboring states.
H. Public Comments
A notice of proposed rulemaking was published at 52 Pa.B. 3423. The Commission received a total of 1,073 public comments regarding the initial proposal: 88 supported the proposal, 56 supported portions of the proposal, 523 opposed the proposal, 306 opposed portions of the proposal and 100 did not pertain to the proposal.
Four themes emerged in the public comments supporting the proposed rulemaking. The first was that the unauthorized stocking of streams by individuals and clubs can be detrimental to the native populations and is vital for fisheries managers to understand what is being introduced into the waters of this Commonwealth. Second was that regulation is necessary to prevent the introduction and spread of aquatic invasive species. Third was support for the stocking authorization and the NOS as there is significant justification for requiring approval of fish being introduced to the waters of this Commonwealth by private stockings. Finally, the fourth theme was that the proposed rule would not diminish opportunities for private stockings or inhibit private hatcheries from raising and supplying fish. The Commission agrees with these four themes.
Five themes emerged in the public comments opposed to the proposed rulemaking. The first was that, as written, the proposed rule created additional barriers to those wanting to stock fish in this Commonwealth and created a situation of impossible compliance causing individuals or groups, or both, stocking fish to stop stocking or violate the regulations. The Commission addressed these concerns by removing the requirement to receive an approved stocking authorization from the Commission and replaced it with the NOS that does not require Commission approval.
The second theme in opposition was that no economic impact analysis was completed to determine the economic effect on the commercial fish farming industry, Pennsylvania fishing clubs, tourism or the general public. The Commission addressed this concern by developing a no-fee NOS that does not require approval to stock fish in waters of this Commonwealth. Furthermore, the Commission determined there would be no negative fiscal impact to the Commonwealth or political subdivisions.
The third theme in opposition was that the stocking authorization should not be included in the rulemaking. The Commission agreed.
The fourth theme in opposition was that stocking by private individuals, groups and cooperative nurseries have supplemented trout stockings for years with very little, or no, adverse effects. The Commission agrees that this Commonwealth has not yet experienced an adverse effect; however, the proposed rulemaking was designed as a proactive measure to lower the likelihood of a future adverse effect.
The fifth and final theme in opposition was that regulations already require fish being transported into this Commonwealth to be tested for diseases, parasites and aquatic invasive species, in-State hatcheries are constantly monitored for fish health, and there are regulations for which species of fish can be stocked and in which bodies of water. The Commission acknowledges that these regulations exist; however, these regulations are insufficient in regard to the protection of this Commonwealth's aquatic resources in relation to current conservation challenges and alignment with the regulations of several neighboring states.
The Commission addressed the comments received through the revisions it made to the proposed rulemaking, which are detailed previously in the Summary of Changes section, that narrowed the scope of the regulation.
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) referred to as the Commonwealth Documents Law, and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided and public 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 Chapters 57, 63, 71, 71a and 73, are amended by amending § 57.8a and 63.51, adding §§ 71a.1—71a.14 and deleting §§ 71.1—71.8 and 73.1—73.3 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(B) The Executive Director will submit this order and Annex A to the Office of Attorney General for approval as to legality and form as required by law.
(C) The 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 January 1, 2024, unless otherwise specified in Chapter 71a.
TIMOTHY D. SCHAEFFER,
Executive DirectorFiscal Note: Fiscal Note 48A-325. Under section 612 of The Administrative Code of 1929 (71 P.S. § 232), (1) Fish Fund; (2) Implementing Year 2021-22 is $105,000; (3) 1st Succeeding Year 2022-23 is $160,000; 2nd Succeeding Year 2023-24 is $203,713; 3rd Succeeding Year 2024-25 is $206,310; 4th Succeeding Year 2025-26 is $220,944; 5th Succeeding Year 2026-27 is $223,736; (7) General Operations; (8) recommends adoption. The Fish Fund can absorb these costs which are significantly lower than the proposed regulation.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 57. STATEMENTS OF POLICY
Subchapter A. FISHERIES POLICIES § 57.8a. Class A wild trout streams.
It is the policy of the Commission to manage self-sustaining Class A wild trout populations as a renewable natural resource to conserve that resource and the angling it provides. Class A wild trout populations represent the best of this Commonwealth's naturally reproducing trout fisheries. With rare exceptions, these stream sections are managed solely for the perpetuation of the wild trout fishery with no stocking. However, there may be circumstances that justify stocking a Class A wild trout stream. Prior to granting permission to stock a Class A wild trout stream under § 71a.8 (relating to stocking of designated waters), the Executive Director will consult internal decision-making criteria set forth in the Operational Guidelines for the Management of Trout Fisheries in Pennsylvania Waters to consider the need for continued stocking at newly designated Class A wild trout streams and obtain the approval of the Commission. Consideration will only be given to requests for continued stocking in stream sections within 1 year of the section being designated as Class A and posted in the Pennsylvania Bulletin; however, entities that previously received an exemption or a Special Activities Permit for continued stocking from the Commission between 2010 and the effective date of this amendment will be eligible for consideration.
* * * * *
Subpart B. FISHING
CHAPTER 63. GENERAL FISHING REGULATIONS § 63.51. Sale of VHS-susceptible species of fish.
* * * * * (d) It is unlawful to sell in this Commonwealth VHS-susceptible species of fish from a VHS-affected or VHS-at risk region, unless the fish meet the requirements of § 71a.7 (relating to introduction or transportation of VHS-susceptible species of fish).
CHAPTER 71. [Reserved] Sec.
71.1.—71.8. [Reserved].
CHAPTER 71a. PROPAGATION AND INTRODUCTION OF FISH INTO COMMONWEALTH WATERS Subchap.
A. SCOPE AND ADMINISTRATIVE PROVISIONS
B. PROPAGATION OF FISH IN THIS COMMONWEALTH
C. FISH INTRODUCTION AND HEALTH MANDATES
D. PROHIBITED SPECIES, AQUATIC INVASIVE SPECIES AND VECTOR PREVENTION
Subchapter A. SCOPE AND ADMINISTRATIVE PROVISIONS Sec.
71a.1. Authority and definitions. 71a.2. General. § 71a.1. Authority and definitions.
(a) Authority. Under section 2102 of the code (relating to rules and regulations), the Commission may promulgate rules and regulations to preserve, protect and enhance the fishery interests of the Commonwealth.
(b) Definitions. The following words, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.
Department—The Department of Agriculture of this Commonwealth.
Diploid—Having two haploid sets of homologous chromosomes.
Genetically modified—An organism whose genome, chromosomal or extrachromosomal, is modified permanently and heritably, using recombinant nucleic acid techniques and includes the progeny of any genetically modified organism derived therefrom.
Grass carp—Ctenophryngodon idella, also known as white amur.
Ornamental pond—An outdoor pond constructed as an aesthetic landscape feature that has a closed system of water circulation with no risk of contacting the surface waters of this Commonwealth; this does not include aquaculture facilities, ponds constructed to provide fishing opportunity, or ponds used for the confinement or production of baitfish.
Triploid—Having three haploid sets of homologous chromosomes.
§ 71a.2. General.
No species of fish may be introduced into waters of this Commonwealth, unless baited on a hook for angling purposes, without prior submission of a Notice of Stocking to the Commission on a form prescribed by the Commission. For the purposes of this subsection, ''waters of this Commonwealth'' does not include waters contained within a property or premise of a propagation or dealer facility licensed under 3 Pa.C.S. §§ 4201—4223 (relating to Aquaculture Development Law). Fish health certification requirements provided in § 71a.6 (relating to fish health certificate requirements) shall be adhered to, when applicable.
Subchapter B. PROPAGATION OF FISH IN THIS COMMONWEALTH Sec.
71a.3. Fish propagation and introduction list. 71a.4. Closed system propagation. § 71a.3. Fish propagation and introduction list.
(a) General. The Bureau of Fisheries will maintain a list of species by watershed for which the Department may issue registrations for artificial propagation and registrations for dealers of live aquatic animals. The Director of the Bureau of Fisheries may update or modify the list of authorized species by adding species to, or deleting species from, the list as necessary to provide for the protection and management of fish and fishing in this Commonwealth. The Commission will provide the list to the Department on or before January 31 each year and whenever the Commission updates or modifies the list. Copies of the list of authorized species are available upon request from the Fish and Boat Commission, Bureau of Fisheries, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823.
(b) Grass carp.
(1) It is unlawful to propagate grass carp, diploid or triploid, in this Commonwealth.
(2) The introduction or importation of grass carp into this Commonwealth or waters of this Commonwealth is prohibited, except that triploid grass carp may be introduced as provided in § 71a.10 (relating to triploid grass carp).
(c) Genetically modified fish. A genetically modified fish may not be propagated and introduced into waters of this Commonwealth, without prior written approval from the Commission.
§ 71a.4. Closed system propagation.
(a) Closed (no discharge) system.
(1) A propagating system may be designated as a closed system only if all of the following criteria are met:
(i) There will be 100% recycling water as normal operations.
(ii) The system will be housed indoors in a structure enclosed by solid walls, floor and roof. For purposes of this subsection, 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 aquatic organisms from the closed system.
(iii) Water can be added to the system only for making up evaporative loss, cleaning and fish harvesting or to reduce toxic ammonia/nitrates by diluting.
(iv) The system does not discharge water into waters of this Commonwealth.
(v) No live fish or live fish eggs may be allowed to escape with water discharges. Accidental spillage of live fish or live fish eggs, including truck loading, and the like, will be contained within the facility in a manner that will prevent fish and fish eggs from escaping into the waters of this Commonwealth.
(vi) The system operator is registered with the Department.
(2) The Department will notify the Commission when it receives an application to register a proposed closed system, and the Commission may, within 30 days of receipt of the notice, inspect the system to ensure that it is designed and constructed in a manner to prevent escapement of live fish or live fish eggs into the waters of this Commonwealth. Closed systems registered under this subsection shall, in addition to an initial inspection, be subject to inspection at any time to ensure compliance with the requirements of this section and the Commission may issue an order to suspend operations of any closed system when an inspection discloses that it is not in compliance.
(3) 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 to help them ensure enclosed facilities prevent escape of aquatic organisms into the waters of this Commonwealth. These guidelines will assist registered propagators in the design, construction and maintenance of closed systems and will assist the Commission in inspecting these systems.
(b) Systems with discharges rendered incapable of containing living organisms. A system whose discharge of water is rendered incapable of containing self-perpetuating living organisms shall be registered with the Department. The Department will notify the Commission when it receives an application to register a proposed system under this subsection, and the Commission may, within 30 days of receipt of the notice, inspect the system to ensure that it is designed and constructed so that its discharge is rendered incapable of containing live fish or live fish eggs. Systems registered under this subsection shall, in addition to an initial inspection, be subject to inspection at any time to ensure compliance with this section and the Commission may issue an order to suspend operations of any system when an inspection discloses that it is not in compliance. The registration of this system may include any species of fish with the approval of the Department.
(c) Escape of fish into waters of this Commonwealth. It is unlawful for an operator of any system registered under subsection (a) or subsection (b) to allow fish to escape into the waters of this Commonwealth.
(d) Written plans for discharge. An operator of any system registered under subsection (a) or subsection (b) shall develop, maintain and make available for immediate inspection by the Commission and the Department upon request a written plan for containing or treating discharge in the event of a discharge system failure.
(e) Notification in event of discharge. An operator of any system registered under subsection (a) or subsection (b) shall notify both the Commission's Director of the Bureau of Fisheries and the Department's Aquaculture Coordinator immediately in the event of a discharge system failure that is likely to contain viable living organisms.
Subchapter C. FISH INTRODUCTION AND HEALTH MANDATES Sec.
71a.5. Notice of Stocking to the Commission. 71a.6. Fish health certificate requirements. 71a.7. Introduction or transportation of VHS-susceptible species of fish. 71a.8. Stocking of designated waters. 71a.9. Improper stocking of Commission fish. 71a.10. Triploid grass carp. § 71a.5. Notice of Stocking to the Commission.
(a) General
(1) No person may introduce any species of fish into waters of this Commonwealth (except baited on a hook for angling purposes) without prior submission of a Notice of Stocking to the Commission. For the purposes of this subsection, ''waters of this Commonwealth'' does not include waters contained within a property or premise of a propagation or dealer facility licensed under 3 Pa.C.S. §§ 4201—4223 (relating to Aquacultural Development Law). Persons who notify the Commission of an intent to stock fish through a Notice of Stocking should also ensure that fish intending to be stocked are limited to those listed on the Notice of Stocking and the Commission's Species by Watershed Approved for Open System (Flow Through) Propagation and Introductions list. An electronic or hard copy of the Notice of Stocking shall be present at the location during the time fish are stocked. In the event the person(s) who filed a Notice of Stocking is not present during the time of stocking, an entity stocking fish on behalf of the authorized person shall possess a copy of the Notice of Stocking.
(2) In addition to the Notice of Stocking requirement set forth in paragraph (1), 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. Written permission from the Commission may be obtained by sending a request to the Executive Director, P.O. Box 67000, Harrisburg, Pennsylvania 17106.
(3) The following apply:
(i) The following do not require submission of a Notice of Stocking:
(A) Fish not on a Commission prohibited species list and raised and sold for the intended uses of indoor aquaria.
(B) Fee fishing operations located on the same property as a propagation facility licensed under 3 Pa.C.S. §§ 4201—4223.
(C) Outdoor ornamental ponds not discharging into a water of this Commonwealth.
(ii) Species obtained through or originating from pet stores or tropical and ornamental fish dealers may not be released into waters of this Commonwealth.
(4) Submission of a Notice of Stocking does not authorize individuals or organizations to stock waters that are prohibited from stocking as defined in §§ 57.8a (relating to Class A wild trout streams) and 71a.8 (relating to stocking of designated waters).
(b) Notice of Stocking Form. A Notice of Stocking shall be made on a form prescribed by the Commission. In addition to the information required under 1 Pa. Code § 35.2 (relating to contents of applications), persons notifying the Commission of intent to stock must provide other information as may be required by the Commission to fully describe the details of the planned stocking.
(c) Exceptions. Exceptions from a Notice of Stocking submission will require prior written approval from the Executive Director or their designee.
(d) Effective Date. Beginning on January 1, 2024, the provisions of § 71a.5(a)—(c) shall be effective.
§ 71a.6. Fish health certificate requirements.
(a) A fish health certificate may be required, as specified in subsection (b), for fish being imported into this Commonwealth and shall certify fish intending to be introduced, place or stocked in waters of this Commonwealth are free of specific diseases, pathogens or parasites determined by the Commission to be of a risk to the fishery interests of the Commonwealth. The Commission will consult with the Department for potential testing of dangerous transmissible diseases of fish.
(b) The Commission shall develop a Fish Health Inspection Protocol for Importation into the Commonwealth and Introduction into Waters of this Commonwealth (protocol). The Commission shall determine which diseases, pathogens or parasites are required for testing for species of fish intending to be introduced into waters of this Commonwealth. The Commission will consult with the Department for potential testing of dangerous transmissible diseases of fish. Fish health certification requirements and procedures shall be modified or updated by the Commission, as necessary. When updates to the protocol occur, the Commission shall publish the protocol as a notice in the Pennsylvania Bulletin and notify the Department of the changes.
(c) The Commission may require testing for intrastate introduction, placement or stocking of fish, as specified in subsection (b), to prevent the introduction or spread of specific diseases, pathogens or parasites that pose a risk to the fishery interests of the Commonwealth. The Commission will consult with the Department for potential testing of dangerous transmissible diseases of fish.
(d) The following fish health requirements apply to the importation of fish into this Commonwealth:
(1) Fish and fish eggs imported into this Commonwealth must originate from sources with a copy of the fish health certification report for all applicable fish being stocked as indicated in the protocol, or a copy of the fish health certification report for the artificial propagation facility if the fish are from a facility that has been certified as having tested negative for all applicable fish pathogens, unless the fish meet one of the following requirements:
(i) The fish are being transported through this Commonwealth, the shipping container remains bio-secure in transit, and the fish are accompanied by documentation stating the point of origin of the fish and the location outside of this Commonwealth where they are to be delivered.
(ii) The fish are being transported to facilities located within this Commonwealth for testing and scientific purposes, the persons transporting the fish have taken adequate measures to prevent escape and to disinfect discharged water and equipment used in the transportation of the fish, and the fish are accompanied in transit by documentation stating the point of origin of the fish and the destination where they are to be delivered for testing or scientific purposes.
(iii) The fish are being transported to a slaughter facility, processing plant or restaurant within this Commonwealth, and the fish are accompanied in transit by documentation stating the point of origin of the fish and the destination where they are to be delivered for slaughter, processing or consumption.
(iv) The fish are dead, recreationally caught fish that are being transported solely for the purpose of human consumption or taxidermy.
(2) Specific testing requirements may vary depending on the species of fish, geographical location of the shipping facility or source, and the final designated end use of the fish being imported into this Commonwealth. The Commission's protocol shall specify these requirements.
(3) Documentation of testing results shall remain with the fish during transport and produced upon request.
(e) The following fish health requirements apply to the introduction of fish into waters of this Commonwealth:
(1) Fish being introduced into waters of this Commonwealth must originate from sources that comply with the fish health inspection process described in the Commission's protocol.
(2) Specific testing requirements may vary depending on the species, origin and final location of where the fish are being introduced into waters of this Commonwealth. The Commission's protocol shall specify these requirements.
(3) When applicable, persons who have filed a Notice of Stocking with the Commission or their agent shall have in their possession, and present upon the request of an officer authorized to enforce the code:
(i) a copy of the fish health certification report for all applicable fish being stocked as indicated in the protocol and the Notice of Stocking; or
(ii) the Notice of Stocking and a copy of the fish health certification report for the artificial propagation facility if the fish are from a facility that has been certified as having tested negative for all applicable fish pathogens as indicated in the protocol and Notice of Stocking.
(f) The Commission grants a grace period for full implementation of the protocol through December 31, 2025. Beginning on January 1, 2026, the provisions of this section and the protocol shall be effective.
§ 71a.7. Introduction or transportation of VHS-susceptible species of fish.
(a) Intrastate transportation. It is unlawful to introduce, transport or cause the transportation of VHS-susceptible species of fish from the portion of the Lake Erie watershed in this Commonwealth into other watersheds of this Commonwealth, except in accordance with § 69.3(b) and (d) (relating to transportation, introduction and sale of VHS-susceptible species of fish out of the Lake Erie watershed).
(b) Interstate transportation. It is unlawful to introduce, transport or cause the transportation into the waters of this Commonwealth VHS-susceptible species of fish from a VHS-affected or VHS-at risk region or VHS-affected or VHS-at risk state unless the fish meet the requirements one of the following requirements:
(1) The fish are from a group of fish certified as having tested negative for VHS or are from an artificial propagation facility certified as having tested negative for VHS in accordance with the testing protocols adopted by the Department and approved by the Commission. Persons transporting these fish shall have in their possession, and present upon the request of an officer authorized to enforce the code, a copy of the fish health certification reports for all VHS-susceptible fish being transported or a copy of the fish health certification report for the artificial propagation facility if the fish are from a facility that has been certified as having tested negative for VHS.
(2) The fish are being transported through this Commonwealth and the shipping container including a tank, trailer, holding vessel or other container remains bio-secure in transit and the fish are accompanied in transit by documentation stating the point of origin of the fish and the location outside of this Commonwealth to which they are to be delivered.
(3) All of the following apply:
(i) The fish are being transported to facilities located within this Commonwealth for testing and scientific purposes.
(ii) The persons transporting the fish have taken adequate measures to prevent escape and to disinfect discharged water and equipment used in the transportation of the fish.
(iii) The fish are accompanied in transit by documentation stating the point of origin of the fish and the destination to which they are to be delivered for testing or scientific purposes.
(4) The fish are being transported to a slaughter facility, processing plant or restaurant within this Commonwealth and the fish are accompanied in transit by documentation stating the point of origin of the fish and the destination to which they are to be delivered for slaughter, processing or consumption.
(5) The fish are dead, recreationally caught fish that are being transported solely for the purpose of human consumption.
(c) International movement.
(1) Except as provided in paragraph (2), it is unlawful to import or cause the importation of VHS-susceptible species of fish into this Commonwealth from a VHS-affected or VHS-at risk region.
(2) VHS-susceptible species of dead fish may be imported into the United States if the fish are recreationally caught and are for human consumption.
(d) Definitions. The following terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
VHS-affected or VHS-at risk region—Includes the Canadian provinces of Ontario and Quebec or other region that the Animal and Plant Inspection Services of the United States Department of Agriculture (APHIS) later designates by order, or the Commission later defines by notice in the Pennsylvania Bulletin as being a VHS-affected region or VHS-at risk region.
VHS-affected or VHS-at risk state—Includes Illinois, Indiana, Michigan, Minnesota, New York, Ohio and Wisconsin or other state that APHIS later designates by order, or the Commission later defines by notice in the Pennsylvania Bulletin as being a VHS-affected state or VHS-at risk state.
VHS-susceptible species—Those listed as a susceptible host species by the World Organization for Animal Health's Aquatic Manual and listed on the Commission's Species by Watershed Approved for Open System (Flow Through) Propagation and Introductions list or as the Commission defines by notice in the Pennsylvania Bulletin. The term:
(1) Includes fish that are dead or alive, preserved or unpreserved, and the parts of the fish.
(2) Does not include the eggs of these species.
§ 71a.8. Stocking of designated waters.
It is unlawful to introduce, place or stock fish in waters that have been designated by the Commission as catch and release, wilderness trout or wild trout management waters except with the express written consent of the Executive Director or their designee. This section does not prohibit a person from returning fish unharmed to the waters from which they were caught or taken.
§ 71a.9. Improper stocking of Commission fish.
When stocking fish reared or salvaged by the Commission or a cooperative nursery recognized by the Commission, the following acts are prohibited:
(1) Failure to stock fish in waters designated by Commission personnel.
(2) Diversion of fish to be stocked to waters not open or accessible to free public fishing.
(3) Mishandling or misuse of fish being stocked in a manner so as to damage or destroy the fish.
§ 71a.10. Triploid grass carp.
(a) Policy. As a limited exception to the prohibition of grass carp in this Commonwealth, it is the policy of the Commission to permit triploid grass carp, certified by the United States Fish and Wildlife Service (USFWS) and procured from a producer participating in the USFWS certification program, to be introduced into Commonwealth waters and imported and transported into this Commonwealth in accordance with this section.
(b) Status. The triploid grass carp is not a game fish.
(c) Permit required.
(1) The Commission finds, under section 2904 of the code (relating to permits for protection and management of particular fish), that permits shall be required for possessing triploid grass carp or introducing them into Commonwealth waters and for importing or transporting triploid grass carp into this Commonwealth to provide for proper protection and management of these fish and other fish in the waters of this Commonwealth. A pond owner, landowner or other person who wishes to possess triploid grass carp and introduce them into a pond or waters located on property owned, leased or otherwise controlled by the person shall, before placing triploid grass carp in the waters, obtain from the Commission a triploid grass carp possession/introduction permit, for a fee of $85. A person who wishes to import triploid grass carp into this Commonwealth shall, before doing so, obtain from the Commission a triploid grass carp importation/transportation permit, for a fee of $85. Permits shall be applied for on forms supplied by the Commission. Live triploid grass carp imported and intended for introduction into waters of this Commonwealth shall be in compliance with § 71a.6 (relating to fish health certificate requirements).
(2) A person aggrieved by a Commission staff action on a permit application may appeal under Chapter 51, Subchapter E (relating to permit procedures) and 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure).
(d) Dealers and importers. In addition to the triploid grass carp permit required by subsection (c), dealers and importers shall obtain and maintain all licenses, permits and registrations required by the Department for the sale or transportation of fish.
(e) Restrictions on introduction of triploid grass carp.
(1) The Commission will not approve the stocking or release of triploid grass carp into a water body wholly or partially in this Commonwealth that is currently known to be inhabited by a species of animal or plant currently listed as status endangered, threatened, candidate or other special concern status, by a state or Federal agency with jurisdiction for the species, without prior written approval for the stocking or release by the agency or agencies which classified the species as endangered, threatened, candidate or of special concern.
(2) The Commission will not approve stocking or release of triploid grass carp into wetlands under Federal or state jurisdiction except in compliance with applicable Federal or state regulations including, when required, the written approval for the stocking or release by the involved agency or agencies.
(3) The Commission will not approve stocking or release of triploid grass carp into a body of water more than 5 acres in surface area until the applicant submits an environmental inspection report prepared by a biologist, fisheries scientist or environmental scientist acceptable to the Commission. The environmental inspection report shall include all of the following:
(i) A certification that the preparer has personally inspected the pond or body of water and that the stocking of triploid grass carp will have no adverse environmental impacts on the waters where stocked or waters upstream or downstream of the waters.
(ii) A description of the measures taken by the applicant to prevent the escape of the grass carp into waters upstream or downstream of the stocked waters.
(iii) Additional information as the Commission may require.
(4) The Commission may require an applicant for a permit to stock triploid grass carp in a pond or body of water of 5 or less acres in surface area to submit an environmental inspection report in the format described in paragraph (3) when the staff's review of the application indicates that further inspection or review of the proposed stocking is appropriate under the circumstances.
(5) The issuance of permits under this section will be subject to the public notice and comment provisions of Chapter 51, Subchapter E.
(f) Prohibited acts.
(1) It is unlawful to transport, import, possess or introduce triploid grass carp in this Commonwealth unless the person possessing, transporting, importing or introducing the grass carp obtains and maintains required permits, possesses a valid bill of sale or bill of origin from a producer participating in the USFWS triploid grass carp certification program and the grass carp are certified by the USFWS to be triploid grass carp. Permits shall be displayed upon request to an officer authorized to enforce the code or this part. The certification of triploid status shall be obtained from the producer at the time of purchase.
(2) Persons, organizations or companies are prohibited from giving, trading or exchanging triploid grass carp except to persons holding valid triploid grass carp possession/introduction permits.
(g) Revocation or suspension of permits. Failure to abide by regulations, permits and permit conditions pertinent to triploid grass carp possession, transportation and introduction may result in suspension or revocation of the applicable permits in accordance with Chapter 51, Subchapter C (relating to suspension, denial or revocation of licenses, permits, registrations or privileges). Revocation or suspension shall be in addition to other applicable penalties provided by law or regulation.
Subchapter D. PROHIBITED SPECIES, AQUATIC INVASIVE SPECIES AND VECTOR PREVENTION Sec.
71a.11. Prohibited species. 71a.12. Watercraft requirements and prohibitions. 71a.13. Bait fish importation and use. § 71a.11. Prohibited species.
(a) It is unlawful to introduce, import, possess or transport in or through this Commonwealth, or the waters of this Commonwealth, the following species:
(1) Snakeheads (all species).
(2) Black carp (Mylopharyngodon piceus).
(3) Bighead carp (Hypophthalmichtys nobilis).
(4) Silver carp (Hypophthalmichtys molitrix).
(5) Zebra mussel (Dreissena polymorpha).
(6) Quagga mussel (Dreissena rostriformis bugensis).
(7) Round goby (Neogobius melanostomus).
(8) Freshwater tubenose goby (Proterorhinus semilunaris).
(9) European rudd (Scardinius erythrophthalmus).
(10) Crayfish (all live species), except when any of the following apply:
(i) Possessed and used as bait on, in or about the water from which taken.
(ii) Possessed or imported for testing and scientific purposes or restaurant consumption, adequate measures have been taken to prevent their escape, and they are accompanied by documentation stating the point of origin and the destination to which they are to be delivered.
(iii) Dead with the head removed or salted and dried for angling purposes.
(11) Ruffe (Gymnocephalus cernua).
(b) Exceptions. Species in subsection (a)(1)—(4) may be possessed in this Commonwealth for the purposes of consumption or slaughter only. Other exceptions for species in subsection (a) shall require prior written approval from the Commission's Executive Director.
§ 71a.12. Watercraft requirements and prohibitions.
(a) General. No person may intentionally place or attempt to place a watercraft, trailer or water-related equipment into waters of this Commonwealth, including aquatic plant harvesting or control equipment, that has aquatic plants or prohibited species attached, in whole or in part, except as provided in this section.
(b) Removal and confinement.
(1) A waterways conservation officer may order the following:
(i) The removal of aquatic plants or prohibited species listed in § 71a.11(a) (relating to prohibited species) from a watercraft, trailer or water-related equipment before being transported or before it is placed into waters of this Commonwealth.
(ii) Confinement of the watercraft at a mooring, dock or other location until the related equipment is removed from the water.
(iii) Removal of watercraft from a water of this Commonwealth to remove prohibited invasive species if the water has not been listed by the Commission as being infected with that species.
(iv) A prohibition on placing a watercraft into a water of this Commonwealth when the watercraft has aquatic plants or prohibited invasive species attached in violation of subsection (a) or when water has not been drained or the drain plug has not been removed in violation of subsection (c).
(v) Decontamination of a watercraft, if possible, on site.
(2) An order for removal of prohibited invasive species under paragraph (1)(i) or decontamination of a watercraft under paragraph (1)(v) may include issuing a notice that specifies a time frame for completing the removal or decontamination, and re-inspection of the watercraft.
(c) Persons transporting watercraft.
(1) When leaving a water of this Commonwealth, a person must drain a watercraft holding water (including those without plugs) and live wells and bilges by removing the drain plug before transporting the watercraft. Transporting includes moving the watercraft over land between connected or unconnected waterbodies but does not include moving watercraft within the immediate area required for loading and preparing the watercraft for transport over land. A person transporting game fish as a result of a tournament for weigh-in purposes is not subject to this subsection.
(2) Drain plugs, bailers, valves or other devices used to control the draining of water from ballast tanks, bilges and live wells must be removed or opened while transporting watercraft.
(3) A person shall ensure the watercraft, trailer, motor, boating gear and conveyance used to transport the watercraft and trailer are free of aquatic organisms, including vegetation.
§ 71a.13. Bait fish importation and use.
(a) A person may not release or dispose live bait fish into any water of this Commonwealth, except live bait fish baited on a hook for angling purposes, without prior submission of a Notice of Stocking to the Commission. A person may collect live bait fish for angling. A species of bait fish collected for use as bait may not be transferred from waters in this Commonwealth into another drainage of this Commonwealth where this particular species does not already exist. This subsection does not apply to the Commission, or a propagation facility licensed by the Department under 3 Pa.C.S. §§ 4201—4223 (relating to Aquaculture Development Law) for the purpose of releasing bait fish into waters of this Commonwealth as food for aquaculture or fisheries management purposes.
(b) Live bait fish imported and intended for introduction into waters of this Commonwealth shall be in compliance with § 71a.6 (relating to fish health certificate requirements).
(c) This subsection does not apply to dead bait fish (salted or frozen) sold for angling purposes outside the Lake Erie watershed. The provisions of § 71a.7 (relating to introduction or transportation of VHS-susceptible species of fish) shall be adhered to for purposes of this section.
CHAPTER 73. [Reserved] Sec.
73.1—73.3. [Reserved].
[Pa.B. Doc. No. 23-1284. Filed for public inspection September 22, 2023, 9:00 a.m.]
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