RULES AND REGULATIONS
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 65, 67 AND 69]
Fishing
[27 Pa.B. 5609] The Fish and Boat Commission (Commission) by this order amends Chapters 65, 67 and 69 (relating to special fishing regulations; nursery waters; and fishing in Lake Erie and boundary lakes). 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
The 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 of the amendments is described in more detail under the summary of changes.
E. Summary of Changes
1) Sections 65.1 and 65.7 (relating to selective harvest program; and trophy trout program). The Commission has clarified these regulations to include a specific reference to the time (8 a.m.) that trout season opens each year.
2) Sections 65.24, 67.1, 69.13, 69.14 and 69.15 (relating to miscellaneous special regulations; nursery waters and exhibition areas; seasons, sizes and creel limits--Lake Erie tributaries; special regulations applicable during the fall season; and miscellaneous special regulations). 3CU has requested the Commission to modify existing steelhead and salmon fishing regulations and to develop new ones for Lake Erie and associated tributary streams. Upon consideration of 3CU's request, the Bureaus of Fisheries and Law Enforcement jointly recommended that the season for salmon and steelhead be extended until the opening day of the regular trout season because steelhead frequent the streams from late summer to mid-April. The Bureaus further recommend that wading be prohibited in Crooked Creek, Peck Run and Orchard Beach Run and that the disturbance of fish in nursery waters be a violation.
A separate special regulation is needed for Conneaut Creek (Erie and Crawford Counties) because of the approved trout water designation. The Bureaus accordingly recommended that fishing in Conneaut Creek be extended from March 1 to midnight the Thursday before the opening day of the regular trout season. The creel limit should be three trout/salmon with a minimum size of 15 inches. Although Conneaut Creek and Turkey Creek are tributaries to Lake Erie, they historically have been treated as inland waters for regulatory purposes rather than as part of the Commission's Lake Erie tributary program.
In Erie and Crawford Counties, additional angling opportunities would be available if special regulations were adopted for Turkey Creek (Erie County); East Branch of Conneaut Creek (Erie County); Temple Run (Erie County); Marsh Run (Erie County); West Branch of Conneaut Creek (Erie and Crawford Counties); Stone Run (Erie and Crawford Counties); Mud Run (Erie and Crawford Counties); East Branch (Erie and Crawford Counties); Middle Branch (Erie and Crawford Counties); and Crazy Run (Crawford County). The Bureaus therefore recommended that the catching of steelhead and salmon should be permitted from 12:01 a.m. the day after Labor Day to midnight the Thursday before the opening day of the regular trout season. The creel limit should be three trout/salmon with a minimum size of 15 inches.
Current regulations applicable to the Lake Erie tributaries (§ 69.13) provide that the extended season closes at midnight on the Friday before opening day of trout season in April. Staff proposed that this wording be changed to midnight of the Thursday before opening day. Traditionally, these streams have been stocked on the Friday before opening day. This has been the practice for at least 15 years. Allowing fishing on the Friday before opening day is inconsistent with the Commission's stocking schedule.
The Commission approved the publication of a notice of proposed rulemaking consistent with staff's recommendations set forth in the Preamble. On final rulemaking, staff recommended that the Commission approve the changes to §§ 65.24, 69.13 and 69.15 as set forth in the notice of proposed rulemaking. Staff also recommended that the Commission approve the changes to § 69.14 except insofar as the changes prohibit wading in Crooked Creek, Peck Run and Orchard Beach Run. Staff did not recommend that the Commission approve the change to § 67.1, which makes it unlawful to disturb fish or other aquatic life in nursery waters or exhibition areas by any means, including wading, throwing stones, rocks or other objects or otherwise agitating the waters. The Commission adopted changes to the regulations consistent with staff's recommendations.
Thereafter, the Commission submitted the final rulemaking package to the Attorney General's office and the Bureau of Legislative and Regulatory Analysis for legal and fiscal review, respectively. Prompted by comments received from the Attorney General's office, the Commission's staff revisited this issue and solicited additional input from the Commission's Bureau of Law Enforcement. Based upon input provided by waterways conservation officers in the Northwest Region, staff recommended to the Commission that it reconsider its prior rulemaking decision and amend § 67.1 to make it unlawful to disturb fish or other aquatic life in nursery waters or exhibition areas by throwing stones, rocks or other objects or otherwise agitating the waters. Staff recommended that any reference to wading be deleted. Staff further recommended that the Commission amend § 69.14 to prohibit wading in Peck Run only and not prohibit wading in Crooked Creek and Orchard Beach Run (which, or portions of which, are designated nursery waters). The intent of these changes is to protect fish that reach the sanctuary of nursery waters and to prevent individuals from driving the fish from these areas. The Commission approved the changes to §§ 67.1 and 69.14, consistent with the staff's recommendations.
Under § 51.5 (relating to correction of regulations), the Commission's staff made a corrective amendment to § 69.13(d) as it pertains to fish bait and bait fish.
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 hereby adopted 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. 1468 (March 22, 1997). The only change to attract public comment was the amendment to § 69.14. The Commission received two public comments on this proposed change. Both comments, one from the Board of Directors of the Orchard Beach Park Association and another from two members of the Association, oppose the proposed amendments that prohibits wading in Orchard Beach Run. Copies of both 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 Juy 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 65, 67 and 69, are amended by amending §§ 65.1, 65.7, 65.24 and 69.15 to read as set forth in 27 Pa. B. 1468 and by amending §§ 67.1, 69.13 and 69.14 to read as set forth at Annex A.
(b) The Executive Director will 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, 27 Pa. B. 1468 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.
PETER A. COLANGELO,
Executive Director(Editor's Note: See 27 Pa.B. 5605 (November 1, 1997) for a document which amends § 65.24. The amendment to § 65.24 adopted as proposed in this document has been incorporated into the section printed at 27 Pa.B. 5605.)
Fiscal Note: Fiscal Note 48A-65 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 67. NURSERY WATERS § 67.1. Nursery waters and exhibition areas.
(a) The Executive Director, with the approval of the Commission, may designate waters as nursery waters or exhibition areas to which the penalties of section 2106 of the code (relating to fishing in hatchery or nursery waters) applies. The designation of waters as nursery waters or exhibition areas shall be effective upon posting of the waters after publication of a notice that the waters have been so designated in the Pennsylvania Bulletin.
(b) A person commits a summary offense of the first degree as provided by section 2106 of the code if the person fishes or trespasses with intent to fish in designated nursery waters or exhibition areas.
(c) It is unlawful to disturb fish or other aquatic life in nursery waters or exhibition areas by throwing stones, rocks or other objects or otherwise agitating the waters.
CHAPTER 69. FISHING IN LAKE ERIE AND BOUNDARY LAKES
Subchapter B. SPORT FISHING AND ANGLING § 69.13. Seasons, sizes and creel limits--Lake Erie Tributaries
(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 waters 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 his residence, 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 of 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 shall 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) Except as provided in §§ 69.14 and 69.15 (relating to special regulations applicable during the salmon and steelhead trout season; and miscellaneous special regulations) and for those waters listed as nursery waters, the following seasons, size and creel limits apply to the tributary streams of Lake Erie in this Commonwealth:
Species Seasons Minimum Size Daily Limit TROUT and SALMON 8:00 a.m. 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 3 fish total may exceed 15 inches in length. 12:01 a.m. the day after Labor Day until midnight Thursday before the opening day of trout season in April. 15 inches 3 (combined species only 2 of which may by lake trout) SMELT* 12:01 a.m. April 1 to midnight, May 31. No minimum No limit FISH BAIT
BAIT FISHOpen year-round (Except approved trout waters where fishing is prohibited from midnight Thursday before the first Saturday after April 11 until 8:00 a.m. on the opening day of trout season). No minimum 50 (combined species) BASS
Largemouth Bass
Small mouth BassJanuary 1 to opening day of trout season in April and first Saturday after June 11 until December 31
Opening day of trout season in April until first Saturday after June 11.**15 inches
20 inches4 (combined species)
1ALL OTHER SPECIES Inland regulations apply except as provided in special regulations (see § 61.1) * Smelt may be taken only in that portion of Lake Erie tributaries from the mouth of the stream in a southerly direction to State Highway No. 5, a distance of approximately 1/2 mile. In taking smelt from tributary streams, devices are limited to dip nets or seines not over 20 inches square or in diameter.
** 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 tributaries during the period from opening day of trout season in April until the first Saturday after June 11.§ 69.14. Special regulations applicable during the salmon and steelhead trout season.
(a) Season. This section applies from 12:01 a.m. the day after Labor Day until midnight the Thursday before the opening day of trout season in April.
(b) Specific restrictions. The following specific restrictions apply to streams marked with an ''X'' during salmon and steelhead trout season described in subsection (a). It is unlawful for a person to fish in violation of these restrictions:
Fishing Fishing prohib- permit- ited from ted, no 10 p.m. time re- to 5 a.m. strictions in areas Fishing north of of Lake Fishing permit- Route 5, Erie prohib- ted ex- closed shoreline ited in Fishing cept from within portions permit- closed 10 p.m. 50 yards desig- ted, no from to 5 a.m. Fishing of mouth nated as time re- 10 p.m. south of prohib- of nursery strictions to 5 a.m. Route 5 ited stream waters Remarks
Conneaut Creek X W. Branch Conneaut Creek X E. Branch Conneaut Creek X Turkey Creek X Raccoon Creek X Crooked Creek X X Elk Creek X X Trout Run, including tributary X X Wading prohibited Walnut Creek X Godfrey Run X X Wading Prohibited Four Mile Creek X Six Mile Creek X Seven Mile Creek X Eight Mile Creek X Twelve Mile Creek X Sixteen Mile Creek X Twenty Mile Creek X Peck Run X Wading prohibited Orchard Beach Run X Cascade Creek X Mill Creek X Lake Erie Shoreline X 50 yards (east and west) mouth of Trout Run and Godfrey Run--Closed from 10 p.m. to 5 a.m. All other tributaries X
[Pa.B. Doc. No. 97-1738. Filed for public inspection October 31, 1997, 9:00 a.m.]
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