RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 65, 69, 75, 77 AND 111]
Fishing; Boating
[33 Pa.B. 3496] The Fish and Boat Commission (Commission) amends Chapters 65, 69, 75, 77 and 111. The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code).
A. Effective Date
The final-form rulemaking will go into effect upon publication of this order adopting the amendments in the Pennsylvania Bulletin.
B. Contact Person
For further information on the 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 (http://www.fish.state.pa.us).
C. Statutory Authority
The amendments to § 65.24 (relating to miscellaneous special regulations) are published under the statutory authority of section 2307 of the code (relating to waters limited to specific purposes). The amendments to §§ 69.21 and 69.24 (relating to limitations on numbers and types of licenses; and limitations on gear) are published under the statutory authority of section 2903 of the code (relating to boat and net licenses for boundary lakes). The amendment to § 75.1 (relating to endangered species) is published under the statutory authority of section 2305 of the code (relating to threatened and endangered species). The amendments to § 77.2 (relating to reptile and amphibian hunt permits) are published under the authority of section 2904 of the code (relating to permits for protection and management of particular fish). The amendments to § 77.6 (relating to season and daily possession limits) are published under the statutory authority of section 2102(b) of the code (relating to rules and regulations). The amendments to §§ 111.6, 111.21 and 111.54 (relating to Berks County; Cumberland County; and Schuylkill County) are published under the statutory authority of section 5124 of the code (relating to particular areas of water).
D. Purpose and Background
The final-form rulemaking is designed to update, modify and improve the Commission's regulations pertaining to fishing and boating. The specific purpose of the final-form rulemaking is described in more detail under the summary of changes. The Commission's Boating Advisory Board considered the proposed changes to Chapter 111 (relating to special regulations counties) and recommended that the Commission adopt the amendments as set forth in the notice of proposed rulemaking.
E. Summary of Changes
(1) Sections 65.24, 77.2 and 77.6. A recent review of the Commission's regulations has revealed that certain housekeeping changes should be made. Accordingly, the Commission has amended these sections to read as set forth in the notice of proposed rulemaking.
(2) Sections 69.21 and 69.24. Beginning on January 1, 1996, the use of gill nets for fishing on boundary lakes became illegal. Since that time, there have been only three commercial fishermen who annually apply for trap net licenses to legally fish in the Commonwealth waters of Lake Erie.
Section 69.21 currently provides that up to 10 individuals may be licensed to fish with up to 20 trap nets each and that each net requires a separate license. Two of the three licensees have not recorded any fishing activity or landings for several years, a requirement for renewing and maintaining a commercial trap net license under § 69.23(c)(1) and (2) (relating to responsibility of licensees). Based upon the performance of the trap net fishery since 1996 and the lack of additional interest in its expansion, there is no reasonable expectation that a vigorous trap net fishery will prosper in the near future. Accordingly, the Commission has amended §§ 69.21 and 69.24 to reduce the number of trap net licenses so that up to three individuals may be licensed to fish up to six trap nets each. The Commission intends to revisit this issue in the future and further reduce the number of trap net licenses if activity continues to be limited and interest is waning.
(3) Section 75.1. In 1990, the United States Department of Interior, Fish and Wildlife Service, designated Alasmidonta heterodon (dwarf wedgemussel) as Federally endangered in the entire range. This species of freshwater mussel is known to occur in Connecticut, Massachusetts, Maryland, North Carolina, New Hampshire, New Jersey, New York, Pennsylvania, Virginia, Vermont and New Brunswick, Canada. Until recently, the dwarf wedgemussel was considered extirpated from its former range in the Delaware River drainage.
During mussel surveys of the Upper Delaware Scenic and Recreation River by William Lellis of the United States Geological Survey, from July to August 2000, the dwarf wedgemussel was discovered at six locations in the Upper Delaware River, Wayne County. Thirteen live specimens and four shells were located from north of Equinunk, PA to south of Callicoon, NY. Subsequent surveys in 2001 and 2002 by William Lellis have documented additional occurrences in the Upper Delaware River Basin.
Section 102 of the code (relating to definitions) defines endangered species as ''all species and subspecies of fish which (1) have been declared by the Secretary of the United States Department of Interior to be threatened with extinction and appear on the Endangered Species List or the Native Endangered Species List published in the Federal Register; or (2) have been declared by the executive director to be threatened with extinction and appear on the Pennsylvania Endangered Species List published in the Pennsylvania Bulletin.'' Because this Federally endangered species recently has been rediscovered in this Commonwealth, the Commission has added it to the Pennsylvania list of endangered species as set forth in the notice of proposed rulemaking.
(4) Section 111.6. The Commission adopted special regulations in 1971 to allow and control the use of the Felix Dam Pool of the Schuylkill River for waterskiing and other uses inconsistent with the 100-foot rule and other special boating requirements. The dam is a very old wooden crib structure and was breached several years ago during a flood event. It does not appear that the dam will be reconstructed and the regulations have become superfluous because the type of boating that the regulations were intended to permit can no longer take place. Accordingly, the Commission has deleted the regulation as set forth in the notice of proposed rulemaking.
(5) Section 111.21. The Commission adopted special regulations in 1979 to control the use of boats on the pool behind the Good Hope Mill Dam on the Conodoguinet Creek. The dam was removed in 2001 and the circumstances that required these special regulations no longer exist. The general boating regulations adequately regulate boating in this area. Accordingly, the Commission has deleted the regulation as set forth in the notice of proposed rulemaking.
(6) Section 111.54. A recent staff review of the Commission's regulations has revealed that they do not include Tuscarora Lake in Schuylkill County as being electric motors only. Accordingly, the Commission has added this lake to its list of electric motors only restrictions as set forth in the notice of proposed rulemaking.
F. Paperwork
The final-form rulemaking will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The 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. 1479 (March 22, 2003). Prior to the formal public comment period, the Commission received two public comments supporting the addition of the Alasmidonta heterodon (dwarf wedgemussel) to the Pennsylvania list of endangered species. Copies of these comments were provided to the Commissioners. The Commission did not receive any other public comments regarding 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 any 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.
Order
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Commission, 58 Pa. Code Chapters 65, 69, 75, 77 and 111, are amended by amending §§ 65.24, 69.21, 69.24, 75.1, 77.2, 77.6, 111.6, 111.21 and 111.54 to read as set forth at 33 Pa.B. 1479.
(b) The Executive Director will submit this order and 33 Pa.B. 1479 to the Office of Attorney General for approval as to legality as required by law.
(c) The Executive Director shall certify this order and 33 Pa.B. 1479 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 DirectorFiscal Note: Fiscal Note 48A-139 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 03-1404. Filed for public inspection July 18, 2003, 9:00 a.m.]
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