RULES AND REGULATIONS
FISH AND BOAT COMMISSION
[ 58 PA. CODE CH. 75 ]
Fishing; Endangered Species
[43 Pa.B. 5453]
[Saturday, September 14, 2013]
The Fish and Boat Commission (Commission) amends Chapter 75 (relating to endangered species). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code).
A. Effective Date
The final-form rulemaking will go into effect on January 1, 2014.
B. Contact Person
For further information on the final-form rulemaking, contact Wayne Melnick, 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.fish.state.pa.us.
C. Statutory Authority
The addition of § 75.5 (relating to qualified surveyors for endangered and threatened species and their habitat) is 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 final-form rulemaking is designed to improve, enhance and update the Commission's protection of endangered and threatened species and their habitat. The specific purpose of the final-form rulemaking is described in more detail under the summary of change.
E. Summary of Change
The Natural Diversity Section (NDS) within the Commission's Bureau of Fisheries, Division of Environmental Services, routinely comments on development projects that may adversely impact endangered and threatened species during the permit review process. The NDS provides technical assistance to project proponents by reviewing projects in or near waterways or other areas that may be occupied by these rare species. Site-specific surveys are a component of the project review phase when a project activity potentially conflicts with an endangered or threatened species and its habitat.
It is essential that individuals who conduct surveys for endangered and threatened species in connection with these projects be qualified to search for, successfully find and correctly identify these species and their habitats. To ensure that individuals conducting these surveys are qualified, the Commission now requires that surveyors demonstrate to its satisfaction that they meet general and, when applicable, taxonomic-specific surveyor requirements. Under the new requirements, to be deemed qualified by the Commission, surveyors will have to document and demonstrate their education and experience surveying an endangered or threatened species and its habitat and their knowledge and experience in species survey protocol implementation. The NDS staff will review applications and may accompany applicants in the field to evaluate their knowledge of the target species, species identification skills and familiarity with target species habitat. If an applicant meets the requirements, the Commission will deem him to be qualified and will place his name on the Commission's qualified surveyor list for the species described in the application.
Requirements are general as to endangered and threatened species and specific as to the taxa to be surveyed. These requirements will be approved by the Executive Director and published in the Pennsylvania Bulletin. The Commission has developed qualified surveyor requirements for all endangered and threatened species.
On final-form rulemaking, the Commission made the following changes. In subsection (b), individuals on existing Commission lists as of January 5, 2013, will be deemed qualified for purposes of § 75.5 but will be required to submit a completed application on the form provided by the Commission. This change will allow individuals on current Commission lists to be ''grandfathered.'' In subsection (c), the Commission will make its lists of qualified surveyors available to the public on its web site. The Commission adopted § 75.5 to read as set forth in Annex A.
As a result of the public comments, the Commission also revised the requirements. The revised requirements will be published as a notice in the Pennsylvania Bulletin concurrently with this final-form rulemaking.
The final-form rulemaking will increase paperwork and create new paperwork requirements in that persons who wish to conduct surveys for endangered and threatened species in connection with development projects as of January 1, 2014, will be required to complete an application to document and demonstrate their education and experience surveying endangered or threatened species and their habitat. In the application, persons also will have to document and demonstrate their knowledge and experience in survey protocol implementation. If approved, the Commission will place the individual's name on the Commission's qualified surveyor list for the species described in the application. Presently, persons who wish to conduct surveys for endangered and threatened species in connection with development projects may voluntarily apply for placement on the list but are not required to do so.
G. Fiscal Impact
The final-form rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The Commission's costs to develop, review and process applications will be nominal. The Commission estimates that it will receive and review approximately 100 applications during 2014, the first year that § 75.5 will be in effect. After the first year, the Commission expects that applications will level off to 25 per year for the next 8 years. Since the Commission's qualification of a surveyor will be valid for 10 calendar years and will expire on December 31 of the 10th year for which it was granted, the Commission expects an increase in applications in year 10 as the 2014 applicants reapply. The Commission estimates the cost of the initial development and printing of the application to be approximately $2,500. The Commission estimates that it will incur approximately $200 in staff time for each application it reviews. The Commission estimates its total cost at about $20,000 to review 100 applications in 2014 and about $5,000 per year to review 25 applications in each of the following 8 years.
The final-form rulemaking will not impose new costs on the private sector or the general public. There is not an application fee to become a qualified surveyor.
H. Public Involvement
Notice of proposed rulemaking was published at 43 Pa.B. 15 (January 5, 2013). The draft requirements were published at 43 Pa.B. 107 (January 5, 2013). The Commission received 27 public comments (16 during and 11 after the formal comment period) concerning proposed § 75.5 and the draft requirements. Commission staff addressed these comments in a Comment and Response Document. Copies of the public comments and the Comment and Response Document were provided to the Commissioners.
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 the public comments received were considered.
(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.
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Commission, 58 Pa. Code Chapter 75, are amended by adding § 75.5 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 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 on January 1, 2014.
JOHN A. ARWAY,
Fiscal Note: Fiscal Note 48A-238 remains valid for the final adoption of the subject regulation.
(Editor's Note: For a notice relating to this final-form rulemaking, see 43 Pa.B. 5567 (September 14, 2013).)
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 75. ENDANGERED SPECIES
§ 75.5. Qualified surveyors for endangered and threatened species and their habitat.
(a) Requirement. To conduct surveys for endangered or threatened species or their habitat in connection with an application for a proposed or planned development activity, a surveyor shall be deemed qualified by the Commission.
(b) Qualification. An individual who wishes to be qualified by the Commission to conduct surveys for endangered or threatened species shall demonstrate to the Commission's satisfaction that he meets the qualified surveyor requirements as approved by the Executive Director and published in the Pennsylvania Bulletin. The individual shall demonstrate his qualifications by submitting the completed application provided by the Commission. Individuals on existing Commission lists as of January 5, 2013, will be deemed qualified for purposes of this section provided they submit the completed application provided by the Commission.
(c) List. Upon qualification, the Commission will place the names of the individuals meeting these requirements on its qualified surveyor list for the species described in the application. The Commission will make these lists available to the public on its web site at www.fishandboat.com.
(d) Duration. The Commission's qualification of a surveyor is valid for 10 calendar years and expires on December 31 of the 10th year for which it was granted.
(e) Renewal. A qualified surveyor shall apply for renewal of the Commission's qualification every 10 years by submitting the completed renewal application provided by the Commission within 90 days prior to the qualification's expiration.
(f) Denial and revocation. The Commission may deny qualification of a surveyor who does not meet the requirements of this section. The Commission may revoke the qualification of a surveyor when the surveyor no longer meets the requirements of this section. A person aggrieved under this subsection may appeal to the Executive Director in accordance with 1 Pa. Code § 35.20 (relating to appeals from actions of the staff). Part II of 1 Pa. Code (relating to General Rules of Administrative Practice and Procedure) applies.
(g) Other requirements. When applicable, a qualified surveyor shall meet the requirements of §§ 51.71 and 75.4 (relating to scientific collectors' permits; and special permits).
[Pa.B. Doc. No. 13-1664. Filed for public inspection September 13, 2013, 9:00 a.m.]
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