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PA Bulletin, Doc. No. 01-2178

RULES AND REGULATIONS

Title 58--RECREATION

FISH AND BOAT COMMISSION

[58 PA. CODE CHS. 51 AND 63]

Administration and Fishing

[31 Pa.B. 6669]

   The Fish and Boat Commission (Commission) by this order amends Chapters 51 and 63 (relating to administrative provisions; and general fishing regulations). The Commission is publishing these amendments under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The amendments relate to administration and fishing.

A.  Effective Date

   The amendments will go into effect upon publication of this order adopting the amendments in the Pennsylvania Bulletin.

B.  Contact Person

   For further information on the amendments, contact Laurie E. Shepler, Assistant Counsel, (717) 705-7815, P. O. Box 67000, Harrisburg, PA 17106-7000. This final-form rulemaking is available electronically through the Commission's website (http://www.fish.state.pa.us).

C.  Statutory Authority

   The amendments to § 51.25 (relating to demand for or waiver of hearing) are published under the statutory authority of section 928 of the code (relating to revocation, suspension or denial of license, permit or registration). The amendments to § 51.41 (relating to general) are published under the statutory authority of sections 928, 2102, 2305, 2711, 2903 and 2904 of the code. The amendments to §§ 51.89, 63.5, 63.11, 63.15 and 63.21 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 the Commission's regulations pertaining to administration and fishing. The specific purpose of the amendments is described in more detail under the summary of changes.

E.  Summary of Changes

   (1)  Section 51.25. The Commission's regulations provide that before the Commission may suspend, deny or revoke an individual's license, permit, special license or boat registration issued under the authority of the code, the Commission must give that individual an opportunity to be heard. The individual must submit a timely demand for a hearing, and the demand shall be in writing. After an individual requests a hearing, the Executive Director appoints a presiding officer to conduct the hearing on the Commission's behalf. Although the Commission's regulations provide for a nonrefundable filing fee of $35, the Commission historically had not charged a fee. The Commission accordingly has amended its regulations to provide for a $35 nonrefundable filing fee. The Commission also has amended its regulations to provide that if an individual demands a hearing and subsequently fails to appear, the individual waives his right to a hearing, and a hearing will not be conducted.

   (2)  Sections 51.41, 51.89, 63.11 and 63.15. When the General Assembly amended the law to transfer administrative responsibility related to commercial artificial propagation from the Commission to the Department of Agriculture, it repealed Chapter 33 of the code (relating to propagation and sale of fish). Therefore, the Commission has amended its regulations to remove any references to this chapter or any of the sections contained in the chapter.

   (3)  Sections 63.5 and 63.21 (relating to methods of fishing; and designation of fishing regulations). The code provides that if a person violates a regulation promulgated under section 2102(a) of the code (relating to general rules) that the Commission has designated as being for the protection of fish or fish habitat or for the health and safety of persons who fish, that person commits a summary offense of the second degree. The penalty is a $100 fine or imprisonment not exceeding 20 days. If a person violates a regulation promulgated under section 2102(b) of the code, that person commits a summary offense of the third degree. The penalty is a $50 fine. An individual who is caught intentionally snagging steelhead, for example, pays a $100 fine, whereas an individual who is caught netting steelhead pays only a $50 fine. This disparity occurs because the Commission promulgated § 63.9 (relating to snatch fishing, foul hooking and snag fishing) under section 2102(a) of the code and designated it as being for the protection of fish or fish habitat or for the health and safety of persons who fish. The Commission, on the other hand, promulgated § 63.5 (relating to fishing devices) under section 2102(b) of the code.

   The Commission, accordingly, has adopted amendments to correct the inconsistency in the current fine structure for using various illegal methods of taking fish from Commonwealth waters.

F.  Paperwork

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

G.  Fiscal Impact

   The amendments will have no adverse fiscal impact on the Commonwealth or its political subdivisions. Currently, no more than 20 individuals per year request administrative hearings regarding the proposed suspension, denial or revocation of their licenses, permits, special licenses or boat registrations issued under the authority of the code. Therefore, the fiscal impact of the amendments to § 51.25 will be minimal. With the exception of the changes to § 51.25, the amendments will impose no new costs on the private sector or the general public. The amendments to § 51.25, as previously stated, will impose a $35 non-refundable filing fee.

H.  Public Involvement

   A notice of proposed rulemaking was published at 31 Pa.B. 4652 (August 25, 2001). The Commission did not receive any public comments concerning the proposals.

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 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 51 and 63, are amended by amending §§ 51.25, 51.41, 51.89, 63.5, 63.11, 63.15 and 63.21 to read as set forth in 31 Pa.B. 4652.

   (b)  The Executive Director will submit this order and 31 Pa.B. 4652 to the Office of Attorney General for approval as to legality as required by law.

   (c)  The Executive Director shall certify this order and 31 Pa.B. 4652 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

   Fiscal Code:  Fiscal Note 48A-118 remains valid for the final adoption of the subject regulations.

[Pa.B. Doc. No. 01-2178. Filed for public inspection December 7, 2001, 9:00 a.m.]


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