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PA Bulletin, Doc. No. 18-438

RULES AND REGULATIONS

Title 58—RECREATION

FISH AND BOAT COMMISSION

[ 58 PA. CODE CHS. 51, 57, 71, 75, 79 AND 93 ]

General Provisions; Fishing; Boating

[48 Pa.B. 1672]
[Saturday, March 24, 2018]

 The Fish and Boat Commission (Commission) amends Chapters 51, 57, 71, 75, 79 and 93 to read as set forth in Annex A. The Commission is publishing this final-omitted rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code) and other authorities described as follows.

A. Effective Date

 This final-omitted rulemaking will go into effect immediately upon publication of this order in the Pennsylvania Bulletin.

B. Contact Person

 For further information on this final-omitted rulemaking, contact Laurie E. Shepler, Esq., P.O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This final-omitted rulemaking is available on the Commission's web site at www.fishandboat.com.

C. Statutory Authority

 This final-omitted rulemaking is published under the statutory authority of section 506 of The Administrative Code of 1929 (71 P.S. § 186). This final-omitted rulemaking is published in accordance with section 204 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. § 1204), known as the Commonwealth Documents Law (CDL), which provides that an agency may omit or modify the procedures specified in sections 201 and 202 of the CDL (45 P.S. §§ 1201 and 1202) if, among other things, the administrative regulation or change relates to agency organization, management or personnel, agency procedure or practice, or Commonwealth property or the agency for good cause finds (and incorporates the finding and a brief statement of the reasons therefore in the order adopting the administrative regulation or change therein) that the procedures specified in sections 201 and 202 of the CDL are under the circumstances impracticable, unnecessary or contrary to the public interest.

D. Purpose and Background

 Under § 51.5 (relating to correction of regulations), the Executive Director is authorized to take immediate corrective action on the Commission's behalf if the Executive Director or the Commission's staff discovers an error or omission in the text of a Commission regulation as published in the Pennsylvania Code or Pennsylvania Bulletin. The purpose of this final-omitted rulemaking is to update the Commission's regulations with current contact information.

E. Summary of Changes

 The Commission amends §§ 51.2, 51.82, 57.11, 71.2, 71.7, 75.4, 79.3, 79.57—79.8, 79.12 and 93.119 because a recent review of the Commission's regulations by staff revealed that some contact information is no longer current and is in need of updating. The Commission amends these sections to read as set forth in Annex A.

F. Paperwork

 This final-omitted rulemaking will not increase paperwork and will not create new paperwork requirements.

G. Fiscal Impact

 This final-omitted rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. This final-omitted rulemaking will not impose new costs on the private sector or the general public.

H. Public Involvement

 Under section 204 of the CDL, an agency may omit the procedures in sections 201 and 202 of the CDL if the administrative regulation or change relates to agency organization, management or personnel, or agency procedure or practice. The Commission, therefore, did not publish a proposed rulemaking or solicit public comment.

Findings

 The Commission finds that:

 (1) Inaccurate or outdated contact information was discovered in §§ 51.2, 51.82, 57.11, 71.2, 71.7, 75.4, 79.3, 79.5—79.8, 79.12 and 93.119.

 (2) Under § 51.5, the Executive Director is authorized to take immediate corrective action on behalf of the Commission, including, if necessary, the issuance of an order to make the necessary correction, if the Executive Director or the Commission's staff discovers an error in the text of a Commission regulation as published in the Pennsylvania Code.

 (3) Because the nature of the amendments is minor and designed to correct errors or update contact information, the Commission finds that the procedures of sections 201 and 202 of the CDL are unnecessary.

Order

 The Commission, acting under the authorizing statutes, orders that:

 (a) The regulations of the Commission, 58 Pa. Code Chapters 51, 57, 71, 75, 79 and 93, are amended by amending §§ 51.2, 51.82, 57.11, 71.2, 71.7, 75.4, 79.3, 79.5—79.8, 79.12 and 93.119 to read as set forth at Annex A, with ellipses referring to the existing text of the regulations.

 (b) The Executive Director shall submit this order and Annex A to the Attorney General for approval as to legality as required by law.

 (c) The Executive Director shall certify this order and Annex A and deposit the same with the Legislative Reference Bureau as required by law.

 (d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.

JOHN A. ARWAY, 
Executive Director

Fiscal Note: 48A-278. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 58. RECREATION

PART II. FISH AND BOAT COMMISSION

Subpart A. GENERAL PROVISIONS

CHAPTER 51. ADMINISTRATIVE PROVISIONS

Subchapter A. PRELIMINARY PROVISIONS

§ 51.2. Commission offices.

 (a) The address of the principal office of the Commission is:

 Pennsylvania Fish and Boat Commission
Post Office Box 67000
Harrisburg, Pennsylvania 17106-7000

 (b) The address of the Centre Region Office of the Commission is as follows:

 Pennsylvania Fish and Boat Commission
595 East Rolling Ridge Drive
Bellefonte, Pennsylvania 16823

Subchapter I. PERMITS TO DRAW OFF IMPOUNDED WATERS

§ 51.82. Application for permits.

 (a) An application for a permit to draw down impounded waters is available from the Fish and Boat Commission, Division of Environmental Services, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823.

 (b) A completed permit application shall be submitted to the address set forth in subsection (a) no later than 30 days prior to proposed commencement of draw down operations.

CHAPTER 57. STATEMENTS OF POLICY

Subchapter A. FISHERIES POLICIES

§ 57.11. Listing of wild trout streams.

 (a) Maintenance of list. It is the policy of the Commission to accurately identify and classify streams supporting naturally reproducing populations of trout as wild trout streams. The Fisheries Management Division will maintain the list of wild trout streams. The Executive Director, with the approval of the Commission, will from time-to-time publish the list of wild trout streams in the Pennsylvania Bulletin and on the World Wide Web. Persons with comments, objections or suggestions about the classification of streams listed may submit them to the Commission for review.

 (b) Criteria for classifying wild trout streams. The classification of a stream as a wild trout stream means that the trout found there have resulted from natural reproduction and that the habitat supports wild trout. Identification of streams for the presence of wild trout typically involves:

 (1) Location and habitat. Classifications of wild trout streams will involve examination of one or more sites, which may vary in size, within the stream. The exercise of judgment by the investigator is essential in describing the extent of the stream continuum to which the examination applies. The investigator should find that the habitat is such as would support natural reproduction of trout.

 (2) Exclusion of stocked trout. In classifying a wild trout stream, the investigator should find trout resulting from natural reproduction in the stream section or upstream and downstream areas and their tributaries. In making this finding, the investigator will specifically exclude trout stocked as fingerlings or adults and trout that escape from a hatchery. The exercise of judgment is required in examining the trout for physical appearance such as coloration, fin condition and body configuration as indicators of the source of the trout. Direct evidence of natural reproduction of trout is a factor in making this classification, but it is not required if the other elements are present.

 (3) Biological criteria. In identifying a wild trout stream, the investigator should find one or more of the following:

 (i) Young of the year trout less than 150 mm occur at some time in the stream section.

 (ii) Two or more ages of wild trout occur at some time within the stream section.

 (4) Tributary linkages. Tributaries to wild trout streams are classified as wild trout streams for their function as habitat for segments of wild trout populations, including nurseries and refuges, and in sustaining water quality necessary for wild trout.

 (c) Existing list. The streams identified as wild trout streams on or before January 1, 2002, and listed as such by the Fisheries Management Division will continue to be considered as wild streams by the Commission.

 (d) Requests for evaluation or re-evaluation of streams. The Commission staff will evaluate or re-evaluate the classification of streams as wild trout streams at the request of the Department of Environmental Protection (DEP) in connection with permitting decisions. Requests for evaluation or re-evaluation from persons or parties other than DEP will be considered for review consistent with available staff and resources and prioritized based on the status of DEP permitting decisions related to the sites. Requests that the Commission staff evaluate or re-evaluate stream sections for inclusion on or removal from the list of streams supporting naturally reproducing populations of trout may be addressed to the Bureau of Fisheries, Pennsylvania Fish and Boat Commission, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823. In evaluating requests to remove streams from the list of wild trout streams, the Commission will take into account circumstances where human intervention or manmade changes have diminished the capacity of a stream to meet the criteria set forth in this section. Streams will not be removed from the list of wild trout streams in circumstances where the investigator finds evidence that their characteristics and trout populations have been changed solely or principally as a result human intervention.

 (e) Appeals. A person aggrieved by the classification of a stream section as a wild trout stream section may appeal the agency action by filing a notice of appeal with the Executive Director, Pennsylvania Fish and Boat Commission, Post Office Box 67000, Harrisburg, Pennsylvania 17106-7000 within 15 days after publication of the notice that the stream section had been so classified in the Pennsylvania Bulletin. Nothing in this subsection will be construed to enlarge or diminish the appeal rights of persons or parties in connection with permitting decisions and other actions of DEP.

Subpart B. FISHING

CHAPTER 71. PROPAGATION AND INTRODUCTION OF FISH INTO COMMONWEALTH WATERS

§ 71.2. Fish species approved for artificial propagation and introduction.

 The Bureau of Fisheries will maintain a list of species by watershed for which the Department of Agriculture 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 of Agriculture 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 Pennsylvania Fish and Boat Commission, Bureau of Fisheries, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823.

§ 71.7. Triploid grass carp.

 (a) Policy. As a limited exception to the prohibition of grass carp (white amur) in this Commonwealth, it is the policy of the Commission to permit triploid grass carp, certified as such 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 (white amur) (Ctenophryngodon idella) 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 (white amur) 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 pondowner, 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 $75. 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 $75. Permits shall be applied for on forms supplied by the Commission. Applications for permits may be obtained from the Triploid Grass Carp Manager, Bureau of Fisheries, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823. Permits will not be issued until after January 1, 1994.

*  *  *  *  *

CHAPTER 75. ENDANGERED SPECIES

§ 75.4. Special permits.

 The Executive Director, or a designee, may issue special permits under section 2305 of the code (relating to threatened and endangered species) to take, catch, kill or possess threatened or endangered species upon written application on forms provided by the Commission.

 (1) Special permits will be issued only upon a showing of unique or extraordinary circumstances justifying the permit and the applicant shows that the permitted action does one of the following:

 (i) Has no demonstrable adverse impacts on the population of the species in this Commonwealth.

 (ii) Is in the best interest of the protection, conservation and management of the species.

 (iii) Is necessary and appropriate in the interests of public health and safety or promotes essential research or public education and information.

 (2) Persons and institutions requesting special permits shall apply before taking, catching, killing, possessing or acquiring the threatened or endangered species. Application forms and information are available from the Natural Diversity Section, Division of Environmental Services, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823.

CHAPTER 79. REPTILES AND AMPHIBIANS.

§ 79.3. Season and daily possession limits.

*  *  *  *  *

 (f) In prosecutions for violations of the possession limits, when venomous reptiles have been killed in apparent violation of the limits, it shall be a defense that the person who killed the venomous reptiles acted under a reasonable apprehension of immediate death or bodily harm to himself or other persons in his immediate vicinity, if no more venomous reptiles are killed than necessary to protect life and limb and if the person reported the kills in writing to the Natural Diversity Section Chief, Division of Environmental Services, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823, within 5 business days after the kill. It is unlawful for a person to possess a venomous reptile, in whole or in parts, that was killed under this subsection.

*  *  *  *  *

§ 79.5. Snapping turtle permits.

 (a) The Commission finds, under section 2904 of the code (relating to permits for protection and management of particular fish), that it is necessary for the proper protection and management of the common snapping turtle (Chelydra serpentina) that persons who hunt, take, catch or kill this species for the purpose of sale, barter or trade have an annual permit for the activity. Application for a permit must be made on a form prescribed by the Commission and must be accompanied by the appropriate fee. Permits may be obtained by applying to the Natural Diversity Section Chief, Division of Environmental Services, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823. The fee for residents is $50 per year; the fee for nonresidents is $100 per year. The denial of a permit under this section is appealable in the manner provided by Chapter 51, Subchapter E (relating to permit procedures).

 (b) It is unlawful to hunt, take, catch, kill or possess the common snapping turtle for purposes of sale, barter or trade without first procuring the required permit. The required permit shall be in possession of the permittee at all times while hunting. Permittees shall comply with the terms and conditions of the permit and furnish the reports required thereby. It is unlawful to alter, borrow, lend or transfer a permit under this section.

 (c) It is unlawful to sell, barter, trade or offer for sale a common snapping turtle, dead or alive, in whole or in parts, taken from lands or waters of this Commonwealth without first procuring the permit required under this section.

§ 79.6. Venomous snake permits.

 (a) Application. The Commission finds, under section 2904 of the code (relating to permits for protection and management of particular fish), that it is necessary for the proper protection and management of the timber rattlesnake (Crotalus horridus) and copperhead (Agkistrodon contortrix) that persons who hunt, take, catch or kill these species have a permit for the activity. Application for a permit must be made on a form prescribed by the Commission and accompanied by the appropriate fee. Permits may be obtained by applying to the Natural Diversity Section Chief, Division of Environmental Services, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823. The fee for residents is $25 per year; the fee for nonresidents is $50 per year. The denial of a permit under this section is appealable in the manner provided by Chapter 51, Subchapter E (relating to permit procedures).

 (b) Required permit. It is unlawful to hunt, take, catch, kill or possess a timber rattlesnake or copperhead, in whole or in parts, without first procuring the required permit from the Commission. The required permit shall be in the possession of the permittee at all times while hunting. Permittees shall comply with the terms and conditions of the permit and furnish the reports required thereby. It is unlawful to alter, borrow, lend or transfer a permit under this section.

 (c) Reporting. Within 10 business days following the capture or kill, or if no snake is captured or killed, within 10 days of the conclusion of the season, the permittee shall complete a report on the form prescribed by the Commission and shall mail the report to the Commission's Natural Diversity Section, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823.

 (d) Tagging of timber rattlesnakes.

 (1) A person who takes, catches, kills or possesses a timber rattlesnake shall immediately complete the possession tag that is attached to his permit and detach the tag from the permit in the field. The possession tag shall be completed in accordance with the instructions printed on the tag, and the information to be provided includes, but is not limited to, the municipality and county where the snake was captured or killed, the date of capture or kill and a description of the snake, including color phase, sex, number of subcaudal scales and length in inches. The possession tag shall be kept in a safe location so that it can be presented along with the timber rattlesnake to which it pertains upon the request of an officer authorized to enforce the code.

 (2) After the possession tag is detached from the permit, it is unlawful to take, catch, kill or possess another timber rattlesnake except as otherwise provided in this chapter.

 (3) It is unlawful to alter, borrow, lend or transfer possession tags under this section.

 (4) When presenting a timber rattlesnake to a taxidermist for mounting, the tag must remain with the rattlesnake while in the possession of the taxidermist.

 (e) Field dressing of timber rattlesnakes. A permittee may field dress a timber rattlesnake so long as the head and tail remain intact.

 (f) Measurement of timber rattlesnakes. Upon the request of an officer authorized to enforce the code, a permittee shall measure a timber rattlesnake to determine its length. If the permittee is unable to measure the timber rattlesnake, the officer may seize the snake so that a measurement may be taken at another location.

§ 79.7. Organized reptile and amphibian hunt permits.

 (a) Application. The Commission finds, under section 2904 of the code (relating to permits for protection and management of particular fish), that it is necessary for the proper protection and management of reptiles and amphibians in this Commonwealth that organized reptile and amphibian hunts be conducted under permits issued under this section. The sponsor of an organized reptile and amphibian hunt shall apply for a permit by no earlier than January 1 and no later than March 1 of the year for which the hunt is proposed. Application for a permit must be made on a form prescribed by the Commission and must be accompanied by the appropriate fee. Permits may be obtained by applying to the Natural Diversity Section Chief, Division of Environmental Services, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823. The fee for the permit is $100. The denial of a permit under this section is appealable in a manner provided by Chapter 51, Subchapter E (relating to permit procedures).

*  *  *  *  *

§ 79.8. Artificial propagation and dealers of live reptiles and amphibians.

 (a) General. Except for hobby breeders and pet stores as defined in 3 Pa.C.S. Chapter 42 (relating to Aquaculture Development Law), 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 reptiles and amphibians. 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. 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, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823.

*  *  *  *  *

§ 79.12. Color morphs of native species.

 (a) 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 reptiles and amphibians).

 (3) Color morphs of native species designated by the Commission may be sold by artificial propagators and dealers registered in accordance with 3 Pa.C.S. Chapter 42 (relating to Aquaculture Development Law) provided they are not taken from the wild.

 (b) The Commission recognizes that the captive breeding of color morphs approved for propagation by the Commission in this section may result in animals that have a normal color appearance (typical phenotype). The typical phenotype progeny of these color morphs may be sold provided that the following conditions are met:

 (1) They are sold by an artificial propagator or dealer registered in accordance with 3 Pa.C.S. Chapter 42.

 (2) They were propagated in a closed system meeting the requirements of § 79.8 by a registered propagator.

 (3) The artificial propagator or dealer that intends to sell them shall file an initial inventory on the form prescribed by the Commission that contains the numbers in possession as of December 31, 2006, and other information that the Commission requires. The artificial propagator or dealer shall submit the inventory to the Commission's Natural Diversity Section Chief, Division of Environmental Services, 450 Robinson Lane, Bellefonte, Pennsylvania 16823 by no later than January 31, 2007.

 (4) The artificial propagator or dealer selling them shall maintain a current inventory on a form prescribed by the Commission, showing their origin, numbers and other information that the Commission requires. Artificial propagators or dealers shall maintain the inventory at their place of business and shall have the inventory in their possession when selling them. The inventory shall be presented upon the request of an officer authorized to enforce the code.

 (5) The artificial propagator or dealer selling them shall submit an annual report on the form prescribed by the Commission that includes changes in the numbers possessed (for example, gains and losses to the inventory) and other information that the Commission requires. The artificial propagator or dealer shall submit the report to the Commission's Natural Diversity Section Chief, Division of Environmental Services, 595 East Rolling Ridge Drive, Bellefonte, Pennsylvania 16823 by no later than January 31 of the following year.

Subpart C. BOATING

CHAPTER 93. BOAT REGISTRATION AND NUMBERING

Subchapter B. TITLING OF BOATS

§ 93.119. Forms.

 (a) The Commission will provide suitable forms of applications, title, notice of security interests, and other notices and forms necessary to carry out this subchapter.

 (b) Except as otherwise provided in this subchapter, all forms and notices required in this subchapter shall be forwarded to the Fish and Boat Commission, Division of Licensing and Registration, Post Office Box 68900, Harrisburg, Pennsylvania 17106-8900.

[Pa.B. Doc. No. 18-438. Filed for public inspection March 23, 2018, 9:00 a.m.]



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