RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CH. 75]
Endangered, Threatened and Candidate Species
[29 Pa.B. 4869] The Fish and Boat Commission (Commission) by this order amends Chapter 75 (relating to endangered species). The Commission is publishing these amendments under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The amendments relate to fish and fishing.
A. Effective Date
These amendments will go into effect upon publication of an order adopting the regulations.
B. Contact Person
For further information on the changes, contact Andrew L. Shiels, Nongame and Endangered Species Unit, (814) 359-5113, 450 Robinson Lane, Bellefonte, PA 16823, or Laurie E. Shepler, Assistant Counsel, (717) 657-4546, P. O. Box 67000, Harrisburg, PA 17106-7000. This final rulemaking is available electronically through the Commission's Web site (http://www.fish.state.pa.us).
C. Statutory Authority
The amendments are published under the statutory authority of sections 2102 and 2305 of the code (relating to rules and regulations; and threatened and endangered species).
D. Purpose and Background
The amendments are designed to update, modify and improve Commission regulations pertaining to endangered, threatened and candidate fish species. The specific purpose of the amendments is described in more detail under the summary of changes. This final rulemaking combines amendments that were contained in two separate notices of proposed rulemaking published at 28 Pa.B. 3591 (August 1, 1998) and 29 Pa.B. 1087 (February 27, 1999).
E. Summary of Changes
(1) Section 61.2 (relating to Delaware River and River Estuary). The Commission, by separate order, previously adopted changes to this section. That order appears at 29 Pa.B. 819 (February 13, 1999).
(2) Sections 75.1, 75.2 and 75.3 (relating to endangered; species; threatened species; and candidate species). The Commission maintains a list of fishes, reptiles, amphibians and aquatic organisms that have declined in distribution and abundance to levels resulting in a determination that these species are endangered, threatened or candidate species in this Commonwealth. These lists have been developed over the years with the help and judgment of recognized experts on Pennsylvania species, such as the Fishes Advisory Committee (Committee). This staff/outside expert committee makes recommendations to the Commission staff, and ultimately, the Commissioners, regarding species lists.
A multiyear cooperative study involving staff and faculty from The Pennsylvania State University and the Commission by means of funding from the Wild Resource Conservation Fund has resulted in a method of objectively classifying fish species as to their distribution and abundance within this Commonwealth. The number of locations where a species has been found is combined with the number of individuals of that species found at each location to develop a standardized method of ranking the level of endangerment for all species of fish known to occur in this Commonwealth. This work combines the more than 11,000 fish records from the Commission's fisheries management database with those of retired Penn State professor Dr. Edwin Cooper, the Penn State Fish Museum, University of Michigan Museum of Zoology, Cornell University, National Museum of Natural History, Environmental Protection Agency and the Academy of Natural Sciences in Philadelphia. All records were entered into a computer database and converted to Geographic Information System (GIS) data coverages. A ranking system was created to determine the relative rarity of each species of fish found in this Commonwealth.
The results indicated that changes to the endangered, threatened and candidate lists were necessary and appropriate. At that time, 46 fish species were listed. A notice of proposed rulemaking, containing changes to the list, was published at 28 Pa. B. 3591. In the notice of proposed rulemaking (Regulation No. 48A-82), the Commission proposed to amend the list to include 33 fish species as endangered, 16 as threatened and 12 as candidate for a total of 61 fish species. Four species were taken off the then current list either because they were more common than previously believed or because they are believed to be extirpated.
After the notice of proposed rulemaking was published, the Committee met and further redefined the list due to additional species location information received. As the result of the additional input from the Committee and consistent with the recommendations of the Commission's staff, the Commission approved the publication of a separate notice of proposed rulemaking. A second notice of proposed rulemaking (Regulation No. 48A-93), containing changes for which public input was sought, was published at 29 Pa.B. 1087. Specifically, the bridle shiner (Notropis bifrenatus) was listed at that time as a candidate species in § 75.3(b), and this species kept this status in the first proposed rulemaking. Based on additional information, however, the Commission, in the second notice of proposed rulemaking, sought public comment to list this fish as an endangered species under § 75.1(b). The longhead darter was listed at that time as an endangered species (§ 75.1(b)). The first notice of proposed rulemaking proposed to move this species to the candidate list (§ 75.3(b)). The second proposed rulemaking sought public comment on including this fish on the threatened species list (§ 75.2(b)). Finally, the second proposed rulemaking dealt with the Potomac sculpin that was listed as candidate species on both the then existing list and the list contained in the first notice of proposed rulemaking. Based on additional information, the Commission proposed to remove that species from the candidate list because the species no longer warrants listing.
On final rulemaking, the Commission adopted the amendments to read as set forth at Annex A. The final list of endangered, threatened and candidate species of fish encompasses 34% of the 159 species of fish native to this Commonwealth.
F. Paperwork
The amendments will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The amendments will have no adverse fiscal impact on this Commonwealth or its political subdivisions. The amendments will impose no new direct costs on the private sector or the general public. It is noted that the direct regulatory significance of designation of a species of fish as an endangered or threatened fish is limited to prohibiting persons from taking, catching, killing or possessing these fish in this Commonwealth. Since none of the species listed have any commercial or recreational significance because of their rarity, there are no direct fiscal impacts from providing these protections.
The private sector and regulated community have asserted that designation of certain fish as endangered or threatened may have indirect fiscal impacts on them because of impacts on permitting decisions by the Department of Environmental Protection (DEP) and other agencies. If an endangered or threatened species is found in an area slated for development, applicants for permits may be required to conduct additional studies or adjust the project to avoid adverse impacts on these fish and their habitat. These are fiscal impacts resulting from regulatory and statutory authorities other than those under the aegis of the Commission. As part of the extensive public input process in connection with these proposed rulemakings, DEP was asked to assess some of these indirect impacts on programs and permitting under its jurisdiction. It opined that the proposed changes to the lists of endangered, threatened and candidate species of fish would have ''little or no'' impacts on the regulated community or DEP. Many of the additions to the list are found in the same watersheds as species already listed so there would be little additional burden placed on projects in those areas.
H. Public Involvement
The first notice of proposed rulemaking was published at 28 Pa.B. 3591. A second notice of proposed rulemaking was published at 29 Pa.B. 1087. Since the publication of the first notice of proposed rulemaking in August 1998, the Commission has extended the public comment period several times. The final deadline for the submission of public comments was March 31, 1999. During the public comment period, the Commission received a total of 280 comments. Among those comments were 56 electronic mail transmissions and two petitions, one containing 86 names and the other containing 76 names. Of the 280 comments, 254 were in favor of the proposed changes to the lists; 10 were opposed; 2 requested additional information and 14 requested that the public comment period be extended. There were also several letters from members of the General Assembly. Most of those letters asked the Commission to extend the public comment deadline. As a result of those requests, the Commission extended the public comment several times. Copies of all public comments were provided to the Commissioners.
In addition, the Commission held two public meetings/hearings on the proposed amendments. On October 30, 1998, the Commission held a public meeting/hearing at DEP's Regional Headquarters on Elmerton Avenue in Harrisburg. Five individuals testified. The Commission also held a public meeting/hearing in the Meadville area on March 29, 1999. Eighteen individuals provided comments. The Senate Game and Fisheries Committee held a hearing on March 9, 1999. Copies of the transcripts from both public meetings/hearings and the Senate hearing were provided to the Commissioners.
Findings
The Commission finds that:
(1) Public notice of intention to adopt the amendments adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided and all comments received were considered.
(3) The adoption of the amendments of the Commission in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statutes.
Order
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Commission, 58 Pa. Code Chapter 75, are amended by amending §§ 75.1--75.3 to read as set forth at 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-82 and 48A-93. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 75. ENDANGERED SPECIES § 75.1. Endangered species.
* * * * * (b) Fish. The following species are endangered:
(1) Northern brook lamprey, Ichthyomyzon fossor.
(2) Shortnose sturgeon, Acipenser brevirostrum.
(3) Lake sturgeon, Acipenser fulvescens.
(4) Atlantic sturgeon, Acipenser oxyrhynchus.
(5) Spotted gar, Lepisosteus oculatus.
(6) Hickory shad, Alosa mediocris.
(7) Cisco, Coregonus artedi.
(8) Silver chub, Macrhybopsis storeriana.
(9) Gravel chub, Erimystax x-punctatus.
(10) Bridle shiner, Notropis bifrenatus.
(11) River shiner, Notropis blennius.
(12) Ghost shiner, Notropis buchanani.
(13) Ironcolor shiner, Notropis chalybaeus.
(14) Blackchin shiner, Notropis heterodon.
(15) Redfin shiner, Lythrurus umbratilis.
(16) Longnose sucker, Catostomus catostomus.
(17) Bigmouth buffalo, Ictiobus cyprinellus.
(18) Black bullhead, Amerius melas.
(19) Mountain madtom, Noturus eleutherus.
(20) Tadpole madtom, Noturus gyrinus.
(21) Northern madtom, Noturus stigmosus.
(22) Burbot, Lota lota (inland populations only).
(23) Threespine stickleback, Gasterosteus aculeatus.
(24) Banded sunfish, Enneacanthus obesus.
(25) Warmouth, Lepomis gulosus.
(26) Longear sunfish, Lepomis megalotis.
(27) Iowa darter, Etheostoma exile.
(28) Eastern sand darter, Etheostoma pellucida.
(29) Northern riffleshell mussel, Epioblasma torulosa rangiana.
(30) Clubshell mussel, Pleurobema clava.
* * * * * § 75.2. Threatened species.
* * * * * (b) Fish. The following species are threatened:
(1) Mountain brook lamprey, Ichthyomyzon greeleyi.
(2) Skipjack herring, Alosa chrysochloris.
(3) Goldeye, Hiodon alosoides.
(4) Mooneye, Hiodon tergisus.
(5) Bigmouth shiner, Notropis dorsalis.
(6) Southern redbelly dace, Phoxinus erythrogaster.
(7) Smallmouth buffalo, Ictiobus bubalus.
(8) Spotted sucker, Minytrema melanops.
(9) Brindled madtom, Noturus miurus.
(10) Bluebreast darter, Etheostoma camurum.
(11) Spotted darter, Etheostoma maculatum.
(12) Tippecanoe darter, Etheostoma tippecanoe.
(13) Channel darter, Percina copelandi.
(14) Gilt darter, Percina evides.
(15) Longhead darter, Percina macrocephala.
* * * * * § 75.3. Candidate species.
* * * * * (b) Fishes.
(1) Ohio lamprey, Ichthyomyzon bdellium.
(2) Least brook lamprey, Lampetra aepyptera.
(3) American brook lamprey, Lampetra appendix.
(4) Longnose gar, Lepisosteus osseus.
(5) Bowfin, Amia calva.
(6) Central mudminnow, Umbra limi.
(7) Eastern mudminnow, Umbra pygmaea.
(8) Hornyhead chub, Nocomis biguttatus.
(9) River redhorse, Moxostoma carinatum.
(10) Brook silverside, Labidesthes sicculus.
(11) Brook stickleback, Culaea inconstans.
* * * * *
[Pa.B. Doc. No. 99-1577. Filed for public inspection September 17, 1999, 9:00 a.m.]
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