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PA Bulletin, Doc. No. 97-1786

RULES AND REGULATIONS

Title 58--RECREATION

FISH AND BOAT COMMISSION

[58 PA. CODE CHS. 63, 65, 69 AND 75]

Fishing

[27 Pa.B. 5779]

   The Fish and Boat Commission (Commission) by this order amends Chapters 63, 65, 69 and 75. 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 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 pertaining to fishing. The specific purpose of the amendments is described in more detail under the summary of changes.

   E.  Summary of Changes

   1) Sections 63.8 and 69.12 (relating to long bows, spears and gigs; and seasons, sizes and creel limits--Lake Erie). The Commission received requests from individuals who scuba dive in Lake Erie to allow the taking of burbot through the use of spears or gigs. The Bureau of Fisheries and Bureau of Law Enforcement personnel in the Northwest Regional Office and Erie County reviewed the requests, and no one had any particular objections.

   Accordingly, the Commission has adopted amendments that permit the taking of burbot from Lake Erie at a depth of at least 60 feet or more using nonmechanical spears or gigs. The season is from June 1 to September 30 annually, with a daily creel limit of five fish per day. The possession of mechanically propelled spearguns is illegal. Divers possessing spears/gigs and taking or attempting to take burbot are required to have a valid fishing license. The Executive Director, acting on the recommendation of the Bureaus of Fisheries and Law Enforcement, previously exercised his authority to make temporary changes to fishing regulations so that the change was in effect on a trial basis during the period July 12--September 30, 1997.

   After the publication of a notice of proposed rulemaking, it was brought to the Commission's attention that according to § 75.2(b) (relating to threatened species), burbot are classified as a threatened species Statewide, when in fact burbot are not threatened in Lake Erie and Presque Isle Bay, including peninsula waters. The Bureau of Fisheries has indicated that it was never intended that burbot be listed as threatened in Lake Erie and Presque Isle Bay. However, the regulation, as currently written, does not reflect that fact. Therefore, the Commission, on final rulemaking, adopted the changes to §§ 63.8 and 69.12 as proposed with the clarification to § 75.2 that the burbot's threatened status does not extend to Lake Erie and Presque Isle Bay.

   2)  Section 65.24 (relating to miscellaneous special regulations). The Allegheny River tailwater located in Warren County provides a popular multispecies fishery for anglers. As a result of the coldwater release from the Allegheny Reservoir, the 8.75 mile section located immediately downstream from the outflow of the reservoir is managed to provide trout angling opportunities through the annual planting of fingerling trout. Under current regulations, the 0.75 mile segment immediately downstream of the reservoir are managed under Miscellaneous Waters Special Regulations with no closed season on trout and a daily creel limit of 3 trout per day. The remaining 8 miles of trout habitat are managed under Statewide regulations. The provision of a coldwater release and the increased productivity of this water combine to offer a unique opportunity for management designed to further enhance the year round trout fishery. Therefore, staff proposed that the regulations for trout be revised on the Allegheny River tailwater. Specifically, staff proposed that the regulations provide for year-round angling with no tackle restriction under a 14-inch minimum size limit and two trout daily creel limit during the regular trout season (8 a.m. opening day through midnight Labor Day), with no harvest permitted during the remainder of the season. This proposal was supported by the Cornplanter Chapter of Trout Unlimited. The Commission adopted changes to § 65.24, consistent with the staff's recommendation.

   F.  Paperwork

   The amendments hereby adopted will not increase paperwork and will create no new paperwork requirements.

   G.  Fiscal Impact

   The amendments 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.

   H.  Public Involvement

   A notice of proposed rulemaking containing the proposed changes was published at 27 Pa.B. 4456 (August 30, 1997). None of the proposed changes attracted public comment.

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 no comments were received.

   (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 Chapters 63, 65, 69 and 75, are amended by amending §§ 63.8, 65.24 and 69.12 to read as set forth at 27 Pa. B. 4456 and by amending § 75.2 to read as set forth at Annex A.

   (b)  The Executive Director will submit this order, 27 Pa. B. 4456 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. 4456 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:  The amendment of § 75.2, amended in this document, was not included in the proposal at 27 Pa.B. 4456.)

   Fiscal Note:  Fiscal Note 48A-71 remains valid for the final aoption of the subject regulations.

Annex A

TITLE 58.  RECREATION

PART II.  FISH AND BOAT COMMISSION

Subpart B.  FISHING

CHAPTER 75.  ENDANGERED SPECIES

§ 75.2.  Threatened species.

   (a)  General. The species of fish, amphibians and reptiles listed in subsections (b) and (c) are classified as threatened. The catching, taking, killing, possessing, importing to or exporting from this Commonwealth, selling, offering for sale or purchasing, of any individual of these species, alive or dead, or any part thereof, without a special permit from the Executive Director is prohibited.

   (b)  Fish.  The following species are threatened:

   (1)  Ohio Lamprey, Ichthyomyzon bdellium.

   (2)  Mountain Brook Lamprey, Ichthyomyzon greeleyi.

   (3)  Altantic Sturgeon, Acipenser oxyrhynchus.

   (4)  Mountain Madtom, Noturus eleutherus.

   (5)  Northern Madtom, Noturus stigmosus.

   (6)  Burbot, Lota lota (except in Lake Erie and Presque Isle Bay, including peninsula waters).

   (7)  Bluebreast Darter, Etheostoma camurum.

   (8)  Channel Darter, Percina copelandi.

   (9)  Gilt Darter, Percina evides.

   (c)  Amphibians and reptiles. The following species are threatened:

   (1)  Green Salamander, Aneides aeneus.

   (2)  Red-bellied Turtle, Pseudemys rubriventris.

   (3)  Rough Green Snake, Opheodrys aestivus.

[Pa.B. Doc. No. 97-1786. Filed for public inspection November 7, 1997, 9:00 a.m.]


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