RULES AND REGULATIONS
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 63, 71 AND 73]
Snakehead Fish
[32 Pa.B. 4485] The Fish and Boat Commission (Commission) hereby 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 these final-omitted amendments under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code).
A. Effective Date
The final-omitted rulemaking will go into effect upon publication of an order adopting the amendments in the Pennsylvania Bulletin.
B. Contact Person
For further information on the final-omitted amendments, contact Laurie E. Shepler, Assistant Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This final-omitted rulemaking is available electronically through the Commission's website (http://www.fish. state.pa.us).
C. Statutory Authority
The final-omitted rulemaking to §§ 63.46, 71.6 and 73.1 (relating to sale, purchase or barter of live snakehead species; prohibited acts; and transportation) are published under the statutory authority of section 2102 of the code (relating to rules and regulations).
D. Purpose and Background
The final-omitted rulemaking is designed to update, modify and improve the Commission's regulations pertaining to fishing. The specific purpose of the amendments is described in more detail under the summary of changes.
E. Summary of Changes
Snakehead fish are native to Asia; they are not native to this Commonwealth. Snakehead fish have not been identified in the wild in this Commonwealth. The discovery of a population of about 100 northern snakehead (Channa argus), one of several species of snakehead fish, in a pond in Crofton County, MD received National news media attention recently. Three species of snakeheads have been found in open waters in 7 states and 13 states currently prohibit possession of these species. It is believed that the introduction of this fish occurs when individuals purchase live fish and subsequently release them into the wild. There have been reports of snakeheads in hobby fish trade (pet stores) in this Commonwealth.
These fish can cause problems for aquatic ecosystems. They have large mouths, big teeth, grow to a weight of 15 pounds, can survive out of water for several days and are considered voracious predators. They have the potential to disrupt the balance between predator and prey in an aquatic ecosystem.
Secretary of the Interior Gale Norton and the United States Fish and Wildlife Service announced a proposal to ban the invasive and voracious snakehead fish from importation and interstate transportation during a press conference held in Washington, DC on July 23, 2002. This action would classify the species as injurious wildlife and subject to the Lacey Act (16 U.S.C.A. § 701).
Although it is currently illegal under Commonwealth laws and regulations for anyone to release live snakehead fish into Commonwealth waters, it previously was not illegal to possess, sell, offer for sale or purchase them. Accordingly, the Commission adopted new regulations to address this issue. The Commission, having found that it is impracticable and contrary to the public interest to follow ordinary proposed rulemaking procedures in this case, adopted the amendments to read as set forth in Annex A.
In terms of enforcement, the Commission plans to pursue a deliberate enforcement approach to ensure fairness while maximizing protection for Commonwealth waters. A person introducing live snakehead fish into Commonwealth waters ordinarily will be cited. However, a person found in possession of live snakehead fish in a situation not involving introduction of the fish into Commonwealth waters will be given a reasonable opportunity to dispose lawfully of the fish in a humane manner before commencement of any prosecution or issuance of any citation.
F. Paperwork
The final-omitted rulemaking will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The final-omitted rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The final-omitted rulemaking will impose no new costs on the general public. However, there may be costs to the private sector in that the Commission has heard anecdotal reports that snakehead fish are being sold by a limited number of pet stores throughout this Commonwealth. The Commission's best estimate is that the final-omitted rulemaking will have a fiscal impact of approximately $2,000 to $3,000 on these pet stores Statewide.
H. Public Involvement
The Commission has omitted the procedures specified in sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (CDL) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 because the Commission for good cause has found that the compliance with procedures specified therein is impracticable and contrary to the public interest. In light of the demonstrated problems caused by live snakehead fish and the response by the Federal and State governments, it would be impracticable and contrary to the public's best interests to delay prohibitions on sale, offering for sale, purchase or possession of live snakeheads in this Commonwealth. There could be some risk that, as other states prohibit possession and sale in the period before the effective date of new Federal prohibitions, this Commonwealth could become a destination state for these fish with concomitant risks to Commonwealth aquatic resources. Even though it is already illegal to stock these fish in Commonwealth waters, the practice of selling, offering for sale, purchasing and possessing these fish poses a foreseeable risk that fish handled in this way will find their way into Commonwealth waterways.
Findings
The Commission finds that:
(1) Compliance with the procedures specified in sections 201 and 202 of the CDL and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2, are in the circumstances impracticable and contrary to the public interest.
(2) 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 adding § 63.46 and by amending §§ 71.6 and 73.1 to read as set forth in Annex A.
(b) The 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 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.
PETER A. COLANGELO,
Executive DirectorFiscal Note: 48A-131. 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 species.
It is unlawful for a person to sell, purchase, offer for sale or barter live snakehead species in this Commonwealth.
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 possess 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), §§ 71.1 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 live snakehead species in this Commonwealth. It is unlawful to introduce or import live snakehead species into the waters of this Commonwealth.
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 live snakehead species in or through this Commonwealth is prohibited.
[Pa.B. Doc. No. 02-1591. Filed for public inspection September 13, 2002, 9:00 a.m.]
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