RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 61, 63, 65 AND 69]
Fishing
[27 Pa.B. 5605] The Fish and Boat Commission (Commission) by this order amends Chapters 61, 63, 65 and 69. The Commission is publishing these amendments under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The amendments deal with fishing.
A. Effective Date
These amendments will go into effect on January 1, 1998.
B. Contact Person
For further information on the amendments, contact 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
These amendments are published under the statutory authority of section 2102 of the code (relating to rules and regulations).
D. Purpose and Background
The amendments are designed to update, modify and improve Commission regulations relating to fishing. The specific purpose for the amendments is described in more detail under the summary of changes.
E. Summary of Changes
1) Sections 61.1, 61.4 and 61.7 (relating to Commonwealth inland waters; Conowingo Reservoir; and Susquehanna River and tributaries). Regulations for the Susquehanna River (footnote in § 61.1 and § 61.7) and the Conowingo Reservoir (§ 61.4) prohibit the harvest of American shad; this was done primarily to protect adult shad that were being trapped and transported up river for stock rebuilding purposes. River herring and hickory shad are other anadromous fish species for which restoration is expected within the Susquehanna River Basin through the operation of the fish passage facilities at the dams. Harvest of hickory shad is prohibited in the Conowingo Reservoir where the Commission follows the regulatory lead of the state of Maryland. Prohibiting harvest of American shad, hickory shad and both species of river herring will remain important during the initial phases of fish passage at the dams. It is appropriate that these fish stocks be protected from harvest during the population building phases in the entire Susquehanna River Basin.
Amending § 61.7 and footnote #4 to § 61.1 to make it illegal to take, catch or kill hickory shad and alewife and blueback herring (collectively known as river herring) will provide the appropriate protection. Amending § 61.4 to make it illegal to take, catch or kill alewife and blueback herring (collectively known as river herring) will add protection to these species in addition to the protection already provided to American shad and hickory shad in the Conowingo Reservoir. The Commission adopted these changes with the clarification that landlocked alewife taken from inland ponds, lakes or reservoirs (such as Lake Raystown), collected by legal means and measuring less than 8 inches in length may be harvested for use as baitfish.
2) Sections 61.1, 61.2, 63.11 and 63.12 (relating to Commonwealth inland waters; Delaware River and River Estuary; eel chutes; and eelpots and fyke nets). Management of American eels is a subject of much discussion among East Coast jurisdictions. According to the American Eel and Horseshoe Crab Public Information Document prepared by the Atlantic States Marine Fisheries Commission American Eel Plan Development Team, ''status of American eel populations along the Atlantic seaboard is poorly understood. At the same time, growing exploitation of American eel has raised concern by various fisheries management interests. Domestic and overseas markets utilize nearly all life history stages of eels and demand for the species continues to be greater than the fishery can supply.'' The economic value of eels, particularly baby eels or elvers (also glass eels), has been referred to as the next most lucrative commodity next to illegal drugs. Values of several hundred dollars per pound of elvers are not uncommon, particularly when destined for aquaculture use in Asia or Europe. It is common knowledge that major suppliers follow the migration and obtain elvers in various jurisdictions through permitted or illegal fisheries, or both. The lack of uniformity, particularly length limits, complicates and hinders action by law enforcement personnel.
This Commonwealth, by virtue of having only one or two commercial fisheries for eels, is relatively well off compared to most other jurisdictions. Even so, the Commission's regulations merit some attention in light of problems with American eel fisheries. Under the code, an applicant can be issued an eel chute (weir) license for $25 for reaches of the North and West Branches of the Susquehanna River, the Juniata River downstream of Mount Union and in the Delaware River. In recent years, undoubtedly due to a scarcity of eels in the Susquehanna drainage, no such permits have been issued. Two were issued for the Delaware River in 1996 with only one involving active fishing and reporting a catch slightly over 400 pounds. Much of the Delaware River, especially that involving the Delaware Water Gap National Recreation Area, is now closed to commercial take of any species, including eels. The authority requiring issuance of eel chute licenses is statutory, and the Commission has no explicit statutory authority to refuse to issue licenses to qualified licensees. However, the Commission does have explicit statutory authority to prohibit the sale of eels taken from Commonwealth and boundary waters. Accordingly, staff recommended that § 63.11(13) be amended so that eels caught lawfully under this section may not be sold or offered for sale. In addition, this section should be amended to add a new subsection providing that eels taken with eel chutes shall be subject to the same size and creel limits as eels taken with hook and line.
It is not known how many anglers take eels with eelpots as currently permitted under § 63.12. It is speculated that few if any take advantage of this practice, which does not require any special permit or license. Staff further suggested that eelpots be considered an illegal device having no place in today's fisheries management plan for American eel.
Use of fyke nets as authorized by § 63.12 requires a $10 permit and may occur only in the Delaware River common to this Commonwealth and New Jersey. In 1996, staff initiated a moratorium on issuing fyke net permits in anticipation of possible changes brought about by an ASMFC coastwide eel management plan. This was intentionally done to minimize inconvenience to anglers who geared up to harvest and sell elvers only to lose that opportunity a year or so later. One permit was issued before word on the moratorium became known to staff. It is not known whether or not that permit was utilized. Based on social conflicts involving fyke netters in other jurisdictions, uncertainty of American eel stocks and the philosophical difference of a commercial elver fishery contrary to recreational angling throughout the rest of this Commonwealth, except Lake Erie, staff suggested that the fyke net program be retired.
American eels, both adult and young, still play a role in recreational angling in this Commonwealth. It is the intent of staff to continue to permit the taking of eels as bait and as conventional sport harvest (if taken on hook and line). In doing so, a 6-inch minimum length limit (with a 50 fish possession limit) needs to be considered to facilitate law enforcement relative to the harvest and trafficking of elvers through Commonwealth markets and to be consistent with regulations in neighboring jurisdictions. This means an angler taking elvers with a seine, dip net or other legal device will have a 6-inch minimum and an 8-inch maximum. The 8-inch maximum applies to eels, chubs, suckers, lampreys and fallfish when taken as baitfish. Otherwise, those over 8 inches in length can be taken only by hook and line.
The Commission adopted changes consistent with staff's recommendations with the understanding that staff will meet with representatives from New York and New Jersey to ensure regulation uniformity.
3) Sections 63.6, 63.7 and 63.8 (relating to authorized devices for game fish, baitfish and fishbait; exceptions to limitations on devices; and long bows, spears and gigs). A review of these regulations revealed a need to clarify or make minor corrections to insure that anglers are able to understand them and that the original intent is contained therein. The Commission adopted these changes that do not alter or change the regulations in any significant manner.
4) Section 65.24 (relating to miscellaneous special regulations). Management of Harveys Lake, a 658-acre natural lake in Luzerne County, has been dynamic and at times controversial in the last 10 years or so. In the mid-1980's, stocking was terminated as the lake exceeded the 200-acre maximum for the adult trout program. Fingerlings stocked on a put-grow-and-take basis were used in recognition of suitable thermal and chemical traits characteristic of a two-story lake. Evaluation of fingerling stockings in comparison to larger size trout indicated very poor survival during the first and perhaps most critical year in the lake. Losses over the dam and predation by chain pickerel, perhaps walleye, and resident waterfowl were thought to be limiting factors in the use of fingerlings. About the same time, results from use and harvest studies across the State on trout-stocked waters were being used to revise stocking rates for better use of hatchery trout and to provide more opportunity for trout angling. Staff recognized the potential to provide year long opportunity for trout angling on a few select two-story lakes/reservoirs through the stocking of adult trout at a very light stocking rate, particularly when use of fingerlings did not achieve success. Thus, adult trout stocking was phased back into the program for Harveys Lake. Brown trout have been emphasized given their greater potential to achieve a larger size in a two-story lake with alewife forage.
Staff would now like to advance the management of Harveys Lake, bearing in mind several key aspects, including: 1) keeping the lake open as long as possible for warmwater/coolwater species angling; 2) providing more trout fishing opportunity by stocking adult trout prior to opening day, during the spring inseason period, and in the fall; 3) stocking a mix of rainbow and brown trout in recognizing differences in catchability and the idea that some, primarily brown trout, will provide the basis for a trophy fishery; and 4) using special regulations to manage a trophy fishery without eliminating opportunity for the typical trout angler to catch and keep a few trout from recent stockings.
New regulations are envisioned to manage a trophy fishery while still permitting anglers to enjoy recently stocked trout center on a reduced daily creel, an elevated minimum length limit and a short period of no-fishing. For a program based on the stocking of hatchery trout, a three trout daily creel will be used in an attempt to prolong the fishery. While the Statewide 7-inch length limit will still apply, only one of the three fish daily limit may exceed 18 inches. This is intended to emphasize the trophy potential of trout stocked in Harveys Lake as it takes brown trout on the average two seasons before the 18 inch length is attained. The no-fishing season of April 1 through 8 a.m. of the opening day of regular trout season is like that for waters in the late winter-extended trout fishing program. It is staff's intent to maximize the number of days Harveys Lake is open for angling but have a very short closure so preseason stocking for the mid-April opener can occur.
The general approach has been aired at several meetings, including meetings of the Luzerne County Federation of Sportsmen and the Harveys Lake Protection Association. Overall reaction has been favorable. On final rulemaking, the Commission slightly reworded the proposed amendments for the purpose of clarity.
5) Section 69.12 (relating to seasons, sizes and creel limits--Lake Erie). Fisheries Management staff have noted changes in (1) water quality; (2) aquatic macrophyte (vegetation) density; and (3) fish species composition in Presque Isle Bay. Generally, improvement in water quality has been noted. Aquatic macrophyte density has increased undoubtedly as a consequence of zebra mussel colonization and related increases in water clarity. Changes in fish species composition can be expected to exhibit modes fluctuations as a consequence of environmental factors. However, substantial increases in rough-fish, primarily quillback, have been noted in recent surveys. Recent surveys also have found evidence of natural reproduction of muskellunge.
Increases in Great Lakes muskellunge stocks in Lake Erie in the vicinity of Buffalo, NY, have been documented. Additionally, recent studies by New York biologists suggest that Great Lakes muskellunge utilize very specific spawning habitats and young muskellunge associate themselves with very specific types of aquatic vegetation. Cursory survey information suggests that these habitats and aquatic plants are available in Presque Isle Bay. Given adequate habitat (spawning and nursery) and availability of adequate forage fish, staff are anxious to foster recovery of the Great Lakes strain muskellunge by protecting larger and mature size classes. Great Lakes muskellunge exhibit maturity schedules where all or most females attain sexual maturity by age 7 at approximately 39 inches. Given this schedule, staff recommended to the Commission that a minimum size limit of 40 inches be established with a one fish daily creel limit. Restrictive regulations and perhaps supplemental stocking of Great Lakes strain muskellunge from out-of-State sources will be used to restore wild muskellunge populations to Presque Isle Bay with a multi-year evaluation. The Commission adopted changes consistent with staff's recommendations.
When the proposed changes appeared in the Pennsylvania Bulletin on proposed rulemaking, the proposed daily creel limit for muskellunge was omitted. Under § 51.5 (relating to correction of regulations), the Commission's staff made a corrective amendment to this section to reflect that the daily creel limit is one.
6) Sections 69.31 and 69.33 (relating to seasons; and use of trap nets). A notice of proposed rulemaking containing proposed changes to §§ 69.21--69.39 was published at 26 Pa.B. 5982 (December 14, 1996). Staff also directly solicited comments from all licensed commercial fishermen on Lake Erie. Although the Commission did not receive any comments during the public comment period, it received one comment shortly after the comment period ended. The commentator offered many suggestions worthy of consideration. However, the extensive changes that he suggested, while within the scope of the proposed rulemaking, required further staff review and will profit from public input. Accordingly, the Commission adopted the regulations as proposed at its January 1997 meeting and agreed to consider additional changes as proposed rulemaking at its spring 1997 meeting.
During a technical staff review in March 1997, staff considered the commentator's requests. Staff found no compelling reason to regulate the time of year when walleye are harvested commercially; therefore, staff recommended that when the total allowable harvest is attained, the season is closed. Staff also acknowledged that trap nets fish more easily and efficiently in shallow water thereby improving the expectation that the total allowable catch can be attained. The distance limits recommended by staff are intended to preserve navigation.
As a result of the technical review, staff recommended to the Commission that the regulations be amended as set forth in this Preamble. The Commission adopted changes to the regulations consistent with staff's recommendations.
F. Fiscal Impact
The amendments hereby adopted will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The amendments will impose no new costs on the private sector or the general public.
G. Paperwork
The amendments will not increase paperwork and will create no new paperwork requirements.
H. Public Involvement
A notice of proposed rulemaking containing the proposed changes was published at 27 Pa.B. 4450 (August 30, 1997). The only change to attract public comment was the amendment to the muskellunge regulations set forth in § 69.12. The Commission received nine public comments favoring the proposed changes. One of the letters also included a list of 142 signatures of anglers who support the changes. Copies of all public comments 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 that all comments received were considered.
(3) The adoption of the amendments to the regulations 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 61, 63 and 69, are amended by amending §§ 61.1, 61.2, 61.4, 61.7, 63.6--63.8, 63.11, 69.31 and 69.33 and by deleting § 63.12 to read as set forth at 27 Pa.B. 4450 and by amending §§ 65.24 and 69.12 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Executive Director will submit this order, 27 Pa. B. 4460 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, 27 Pa.B. 4450 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 Director(Editor's Note: See 27 Pa.B. 5609 (November 1, 1997) for a document which amends § 65.24, amended in this document. The amendment at 27 Pa.B. 5609 has been incorporated into this document.
(A proposal to amend § 63.8, amended in this document, remains outstanding at 27 Pa.B. 4456 (August 30, 1997).
Fiscal Note: Fiscal Note 48A-68 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 65. SPECIAL FISHING REGULATIONS § 65.24. Miscellaneous special regulations.
The following waters are subject to the following miscellaneous special regulations:
County Name of Water Special Regulations * * * * * Crawford and Erie Conneaut Creek
E. Branch Conneaut Creek
M. Branch Conneaut Creek
W. Branch Conneaut Creek
Mud Run
Stone RunSalmon and Steelhead: 12:01 a.m. the day after Labor Day until midnight the Thursday before the opening day of trout season in April.
Minimum size limit: 15 inches.
Daily creel limit: 3 (combined species).
Lake Erie fishing permit is not required.Crawford Crazy Run Salmon and Steelhead: 12:01 a.m. the day after Labor Day until midnight the Thursday before the opening day of trout season in April.
Minimum size limit: 15 inches.
Daily creel limit: 3 (combined species).
Lake Erie fishing permit is not required.* * * * * Erie E. Branch Conneaut Creek
Marsh Run
Temple Run
Turkey CreekSalmon and Steelhead: 12:01 a.m. the day after Labor Day until midnight the Thursday before the opening day of trout season in April.
Minimum size limit: 15 inches.
Daily creel limit: 3 (combined species).
Lake Erie fishing permit is not required.* * * * *
Luzerne Harveys Lake During the period from the opening day of trout season through midnight March 31, the daily creel limit for trout (combined species) is 3, only one of which may exceed 18 inches in length.
Fishing is prohibited from April 1 through 8 a.m. of the opening day of regular trout season.
Warmwater/coolwater species, except as provided in this section--Inland regulations apply.* * * * *
CHAPTER 69. FISHING IN LAKE ERIE AND BOUNDARY LAKES
Subchapter B. SPORT FISHING AND ANGLING § 69.12. Seasons, sizes and creel limits--Lake Erie.
(a) It is unlawful to take, catch, kill or possess fish, except during the seasons specified in this section. It is not a violation of this section if a fish caught out of season from water where fishing for other species is lawful is immediately returned unharmed to the waters from which it was taken.
(b) It is unlawful to take, catch, kill or possess fish of less than the minimum size specified in this section. It is not a violation of this section if an undersized fish taken from waters where fishing is otherwise lawful is immediately returned unharmed to the waters from which it was taken.
(c) It is unlawful to take, catch or kill more than 1 day's limit of any species of fish as specified in the following chart during 1-calendar day. It is unlawful to possess more than 1 day's limit of any species of fish as specified in the following chart except under the following circumstances:
(1) A person may possess any number of lawfully caught fish at the person's residence.
(2) A person who is engaged in a fishing trip away from home for 2 or more consecutive calendar days may, while transporting fish from the place where caught to hisresidence, possess a number of fish equal to no more than two times the daily creel limit for that species of fish. In prosecution for violation of this section, it shall be a rebuttable presumption that a person transporting fish from a fishing site caught all the fish during 1-calendar day.
(3) A fish will not be considered to be caught in violation of this section if it is immediately returned unharmed to the waters from which it was taken.
(4) A fish caught that is not to be counted in the creel limit shall be immediately released unharmed into the water from which taken. Except as otherwise provided in § 53.24 or § 63.40 (relating to tournament and fishing derby permits; and fishing tournament and fishing derbies), a fish placed on a stringer, or confined by any type of container, structure or device, or not returned immediately to the water, will be considered as part of the daily creel or possession limits. Fish returned to the water shall be handled carefully and be returned unharmed to the water from which taken.
(5) Fish may be given to another person, but the fish will be counted in the donor's creel limit and neither the donor nor the recipient may kill or possess (while in the act of fishing) more than the limit allowed.
(d) The following seasons, sizes and creel limits apply to Lake Erie and Presque Isle Bay, including peninsula waters:
SPECIES SEASONS MINIMUM SIZE DAILY LIMIT MUSKELLUNGE
and
MUSKELLUNGE
HYBRIDS
PIKE
Inland seasons apply: See § 61.1 40 inches 1 Northern 24 inches 2 WALLEYE* Open year-round 15 inches 6 BASS
Largemouth
SmallmouthJanuary 1 to opening day of trout season in April and first Saturday after June 11 until December 31 15 inches 4 (combined species) Opening day of trout season in April until first Saturday after June 11.* 20 inches 1 TROUT and SALMON First Saturday after April 11 until midnight Labor Day. 9 inches 8 (combined species only 2 of which may be lake trout). Of the entire catch (combined species) only 5 fish total may exceed 15 inches in length. 12:01 a.m. the day after Labor Day until midnight on the Friday before the first Saturday after April 11 15 inches 3 (combined species only 2 of which may be lake trout). STURGEON No open season ENDANGERED SPECIES SUNFISH,
CRAPPIES,
CATFISH, ROCK
BASS, SUCKERS,
EELS, CARP,
WHITE BASSOpen year round None 50 (combined species) YELLOW PERCH Open year-round 8 inches 20 BAIT FISH
FISH BAITOpen year-round None 50 (combined species) ALL OTHER
SPECIESInland regulations apply: See § 61.1 *It is unlawful to conduct or participate in a fishing tournament (as defined in § 63.40 (relating to seasons for fishing tournaments)) for bass on Lake Erie or Presque Isle Bay during the period from opening day of trout season in April until the first Saturday after June 11.
[Pa.B. Doc. No. 97-1737. Filed for public inspection October 31, 1997, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
