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PA Bulletin, Doc. No. 03-2228



[58 PA. CODE CHS. 61 AND 65]


[33 Pa.B. 5705]

   The Fish and Boat Commission (Commission) amends Chapters 61 and 65 (relating to seasons, sizes and creel limits; and special fishing regulations). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The final-form rulemaking relates to the minimum size and daily limit for Delaware River and River Estuary striped bass and a miscellaneous special regulation for Raccoon Creek State Park Upper Pond in Beaver County.

A.  Effective Date

   This final-form rulemaking will go into effect on January 1, 2004.

B.  Contact Person

   For further information on this final-form rulemaking, contact Laurie E. Shepler, Assistant Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This final-form rulemaking is available electronically through the Commission's website (

C.  Statutory Authority

   The amendment to § 61.2 (relating to Delaware River and River Estuary) is published under the statutory authority of section 2102(b) of the code (relating to rules and regulations). The amendment to § 65.24 (relating to miscellaneous special regulations) is published under the statutory authority of section 2307 of the code (relating to waters limited to specific purposes).

D.  Purpose and Background

   The final-form rulemaking is designed to update, modify and improve the Commission's regulations pertaining to fishing. The specific purpose of the final-form rulemaking is described in more detail under the summary of changes.

E.  Summary of Changes

   (1)  Section 61.2.  The evolution of the Commission's Delaware River and Estuary striped bass regulations has been quite dynamic over the past 20 years. As a member of the Atlantic States Marine Fisheries Commission (ASMFC) Striped Bass Management Board, the Commission has worked in concert with other east coast states, in particular neighboring jurisdictions, regarding an agreed upon management plan for migratory striped bass. The Commission has amended its regulations to reflect changes to the ASMFC Interstate Fishery Management Plan for Atlantic Striped Bass. Currently, one striped bass between 24 and 28 inches and one striped bass 28 inches or longer may be taken per day.

   Specific compliance criteria contained in Amendment 6 of the Atlantic Striped Bass Management Plan adopted in February 2003 includes a two-fish creel limit and a 28-inch minimum size limit for most recreational fisheries. Jurisdictions may implement other regulations provided conservation equivalency is maintained. Regulations differing from the two-fish per day at the 28-inch minimum size must be approved first by the ASMFC striped bass technical committee and then the management board. The implementation schedule to meet Amendment 6 deadlines and the uncertainty with regard to how ''producer areas'' will be handled regarding status quo have placed this Commonwealth in a dilemma with neighboring jurisdictions bordering the Delaware River and Estuary. To date, New York, Delaware, New Jersey and the Commonwealth have attempted to maintain consistent regulations for Delaware River striped bass.

   With the implementation of Amendment 6, New York and Delaware are going to implement the two at 28 inches package. It is uncertain, however, what course of action New Jersey will take. Under the circumstances, the Commission believes that it would be prudent for the Commonwealth to take the same approach as New York and Delaware until the ''producer area'' issue is resolved. Accordingly, the Commission amended § 61.2 to impose a two-fish creel limit and a 28-inch minimum size limit for striped bass taken during the current harvest seasons. The Commission amended this section to read as set forth in the notice of proposed rulemaking.

   (2)  Section 65.24.  Raccoon Creek State Park Upper Pond is an 8-acre impoundment in Hanover Township, Beaver County, which is maintained by the Department of Conservation and Natural Resources. This impoundment was inventoried by the area fisheries manager in 2002. According to the inventory, the fish community is primarily a warm water one with a fairly abundant largemouth bass population with a favorable size structure. Bluegills were available in moderate numbers and smaller sizes during the May 2002 survey. Raccoon Creek State Park is one of the closest State parks to the Pittsburgh metropolitan area and is prone to heavy visitation. State park personnel expressed strong interest in maintaining, if not improving, the quality of the fishery at the Upper Pond and the educational experience of groups using this waterway. Trout stocking is not being considered due to the close proximity of trout stocked waters in nearby 101-acre Raccoon Lake and sections 2 and 3 of Traverse Creek. Also, the pond is located in somewhat of a remote setting requiring a minimum of a 1/2-mile hike on a gate access road.

   Accordingly, the Commission adopted catch-and-release regulations for all species at Raccoon Creek State Park Upper Pond to optimize use of this waterway. The Commission amended § 65.24 to read as set forth in the notice of proposed rulemaking. Under § 51.5 (relating to correction of regulations), the Commission is making a corrective change to reflect that the correct name of the State park is Raccoon Creek State Park, not Raccoon State Park.

F.  Paperwork

   This final-form rulemaking will not increase paperwork and will create no new paperwork requirements.

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 impose no new costs on the private sector or the general public.

H.  Public Involvement

   Notice of proposed rulemaking was published at 33 Pa.B. 4076 (August 16, 2003). Regarding the proposed amendments to § 61.2, the Commission received one public comment from the Upper Delaware Council requesting that the Commission consider a minimum size limit of 18 inches so that the size limit is consistent with producer areas, such as the Hudson River. Commission staff, however, believe that until the ASMFC designates the Delaware River as a producer area, the Commission should not consider a reduced minimum size limit. Copies of this public comment were provided to the Commissioners. The Commission did not receive any public comments concerning the other proposed amendment.


   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 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.


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

   (a)  The regulations of the Commission, 58 Pa. Code Chapters 61 and 65, are amended by amending § 61.2 to read as set forth at 33 Pa.B. 4076 and § 65.24 to read as set forth in Annex A, with ellipses referring to the existing text of the regulation.

   (b)  The Deputy Executive Director will submit this order, 33 Pa.B. 4076 and Annex A to the Office of Attorney General for approval as to legality as required by law.

   (c)  The Deputy Executive Director shall certify this order, 33 Pa.B. 4076 and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect on January 4, 2004.

Deputy Executive Director

   Fiscal Note:  Fiscal Note 48A-148 remains valid for the final adoption of the subject regulations.

Annex A



Subpart B.  FISHING


§ 65.24.  Miscellaneous special regulations.

   The following waters are subject to the following miscellaneous special regulations:

County Name of Water Special Regulations
*      *      *      *      *
Beaver Raccoon Creek State Park
Upper Pond
This is a catch and release/no harvest fishery for all species. It is unlawful to take, kill or possess any fish. All fish caught must be immediately returned unharmed.

*      *      *      *      *

[Pa.B. Doc. No. 03-2228. Filed for public inspection November 21, 2003, 9:00 a.m.]

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