RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 61, 65 AND 69]
Fishing
[34 Pa.B. 6328] The Fish and Boat Commission (Commission) by this order amends Chapters 61, 65 and 69 (relating to seasons, sizes and creel limits; special fishing regulations; and fishing in Lake Erie and boundary lakes). The Commission is publishing this final-form rulemaking under 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The changes relate to the season, size and creel limit for American shad in the Schuylkill River upstream of the I-95 Bridge and its tributaries; eliminating the phrase ''molded facsimiles or replicas'' as used in various special fishing regulations where terminal tackle is restricted to artificial lures; changing the name of the Select Trout Stocked Lake Program to the Early Season Trout Stocked Waters Program; and the seasons, sizes and creel limits for burbot and smelt in Lake Erie, its tributaries and Presque Isle Bay.
A. Effective Date
This final-form rulemaking will go into effect on January 1, 2005.
B. Contact Person
For further information on the final-form rulemaking, contact Laurie E. Shepler, Esq. (717) 705-7815, P. O. Box 67000, Harrisburg, PA 17106-7000. This final-form rulemaking is available electronically through the Commission's website www.fish.state.pa.us.
C. Statutory Authority
The amendments to §§ 61.1, 61.8 and 69.12 (relating to Commonwealth inland waters; Lehigh River and tributaries; and seasons, sizes and creel limits--Lake Erie and Lake Erie tributaries) are published under section 2102 of the code (relating to rules and regulations). The amendments to §§ 65.1--65.3, 65.5--65.7, 65.10 and 65.24 are published under section 2307 of the code (relating to waters limited to specific purposes).
D. Purpose and Background
This final-form rulemaking is designed to update, modify and improve the Commission's regulations pertaining to fishing. The specific purpose of this final-form rulemaking is described in more detail under the summary of changes.
E. Summary of Changes
(1) Section 61.8. Major efforts to open or remove blockages to anadromous fish migration on the Schuylkill River are underway. Three dams are now or will be breached/removed. These dams are Plymouth Dam (River Mile (RM 18), Vincent Dam (RM 42) and Felix Dam (RM 79). The Fairmount Dam (RM 9) has a vertical slot fishway that is to be rebuilt in 2005. On March 10, 2004, groundbreaking occurred for a fishway at Flat Rock Dam (RM 15). Norristown Dam (RM 21) will have fish passage in place by 2006, and Black Rock Dam (RM 37) will have fish passage by 2007.
The Commission has been stocking fry shad in the Schuylkill River for several years, and sampling as recent as 2003 indicates that these fish are returning as adults. With the likelihood of more and more of the river being open to passage, there is a need to implement restrictive regulations to enhance restoration efforts while providing anglers with an opportunity to fish for and harvest this exciting sport fish. The Commission believes that a one shad creel limit, which currently is in place on the Lehigh River where similar restoration work is underway, is appropriate to maintain a fishery yet not degrade restoration efforts. As anglers are able to go out and catch American shad and possibly harvest one on occasion, they should be more inclined to actively support restoration activities.
The Commission chose not to use the Fairmount Dam as the downstream limit on the Schuylkill River for this final-form rulemaking, unlike the current regulations on the Lehigh River where the Easton Dam (right at the confluence with the Delaware River) is the downstream limit of waters having the one fish creel limit. Although the several mile reach of the river from the Fairmount Dam downstream to the confluence with the Delaware River/Estuary is tidal, American shad tend to concentrate at the base of the Fairmount Dam. Thus, using the I-95 Bridge as a downstream limit for the one fish limit will provide additional protection to adult American shad having a definite interest in ascending the Schuylkill River. The Commission accordingly established a one fish creel limit for American shad in the Schuylkill River basin upstream of the bridge on I-95 at Philadelphia. Specifically, the Commission amended § 61.8 to read as set forth in the notice of proposed rulemaking.
(2) Sections 65.1--65.3, 65.5--65.7 and 65.24. Where terminal tackle is restricted to artificial lures, the Commission's regulations provide that fishing may be done with artificial lures only constructed of metal, plastic, rubber, or wood or with flies and streamers constructed of natural or synthetic materials. Lures may be used with spinning or fly fishing gear. Use of other gear is prohibited. Specifically prohibited are the use of molded facsimiles or replicas of insects, earthworms, fish eggs, fish or any invertebrate or vertebrate either singly or in combination with the other materials.
Generally, in these areas (that is, Selective Harvest, Delayed Harvest Fly-fishing Only; Heritage Trout Angling Program, Catch-and-Release, Delayed Harvest Artificial Lures Only, Trophy Trout Program and the West Branch of the Delaware River in Wayne County), the use or possession of fishbait, natural bait or baitfish and the use of a device, natural or synthetic, capable of catching fish other than artificial lures is prohibited. However, the wording varies slightly from regulation to regulation.
The phrase ''molded facsimiles or replicas of insects,'' as used in the regulations, is difficult to apply when dealing with the vast array of processes used to create artificial fishing lures. In addition, the life forms that molded facsimiles or replicas are intended to represent further confound the interpretation of the regulations.
The Commission simplified these regulations by eliminating the specific prohibition against the use of molded facsimiles or replicas of insects, earthworms, fish eggs, fish or any invertebrate or vertebrate either singly or in combination with the other materials. The Commission also modified the regulations to state uniformly that the use or possession of any natural bait, baitfish, fishbait, bait paste and similar substances, fish eggs (natural or molded) or any other edible substances, and the use of any other lure, other than artificial lures, flies or streamers, is prohibited in these areas. In § 65.5 (relating to catch-and-release), the prohibition against barbed hooks and the requirement that barbless hooks are used will remain. The Commission amended these sections to read as set forth in the notice of proposed rulemaking.
(3) Section 65.10 (relating to Select Trout Stocked Lake Program). At the July 1994 meeting, the Commission approved the creation of what later became known as the Select Trout Stocked Lake Program. Through the stocking of a portion of the preseason trout allocation during the January through early March period in select lakes, reservoirs and stream sections, the Commission provides opportunities for trout angling (and harvest of three trout per day) in waters that normally would be closed to fishing during March as part of the traditional preseason stocking period. As stream sections are included in the program, a name change is warranted, particularly for use in publications, website coverage and correspondence to the angling public. Thus, without changing the intent of the program, the Commission changed the name of § 65.10 from ''Select Trout Stocked Lake Program'' to ''Early Season Trout Stocked Waters Program.'' The Commission also amended § 61.1 (relating to Commonwealth inland waters) to reflect the new name of the program, which is referenced in that section. The Commission amended these sections to read as set forth in the notice of proposed rulemaking.
In accordance with § 51.5 (relating to correction of regulations), the Executive Director took immediate corrective action on the Commission's behalf to change the reference to lakes in § 65.10(a) to ''waters.'' This section will read as set forth in Annex A.
(4) Section 65.24 (relating to miscellaneous special regulations). Lower Burrell Park Pond (also locally known as Holtzhauer Lake) is a 4 acre impoundment located in northwestern Westmoreland County and owned by the City of Lower Burrell (City). The impoundment was built on an unnamed tributary to Little Pucketa Creek and is very accessible to a public road (68% within 110 yards). The entire shoreline is open to public angling, but ice fishing and boating are not permitted on the impoundment. The impoundment is located in a city park that has a walking trail around the lake, a handicap access fishing pier, several parking areas, picnic pavilions and recreational facilities. A May 2002 fish population sampling by the Commission's Area Fisheries Manager found largemouth bass to be the dominant warmwater game fish and bluegill to be the dominant panfish. The bass and bluegill fish population size structure and density are of relatively high quality.
Informal catch and release regulations have been imposed by the City at the impoundment since September 2000. The City would like to continue with the catch and release regulations and to have them enforced by the Commission. The Commission concurs with the City's request and has not heard of any complaints about the current but ''informal'' regulations. Because the pond is a publicly owned, highly accessible impoundment in an urban population area, it has great appeal for the trout stocking program. Commission staff will continue to work with the City on this aspect of a management plan.
The Commission amended § 65.24 to impose catch-and-release only regulations for all species at Lower Burrell Park Pond to optimize use of this waterway. Specifically, the Commission amended this section to read as set forth in the notice of proposed rulemaking.
(5) Section 69.12. Anglers occasionally catch burbot by hook and line in Lake Erie and Presque Isle Bay. However, burbot may only be legally taken by SCUBA divers by use of nonmechanical spears or gigs at a depth of at least 60 feet during the period, June 1 to September 30, with a daily limit of five. Although inland populations of burbot are endangered and therefore harvest is not allowed, burbot in Lake Erie are abundant enough to support commercial and sport harvest. The Commission's Bureau of Law Enforcement personnel indicate that anglers who catch burbot during the winter months rarely catch more than a couple per day. Thus, the Commission amended this section to allow burbot to be taken by hook and line with a limit of five per day and no closed season. Commission staff anticipate no adverse impacts to burbot populations as a result of the change.
As with burbot, anglers occasionally catch smelt through the ice in Presque Isle Bay. Under the Commission's current regulations, smelt are not specifically listed and have been considered baitfish. Baitfish may be taken year around with no minimum size requirement and a daily limit of 50 (combined species). To clarify the existing regulations, the Commission amended this section to list smelt separately with no closed season, no minimum length and no creel limit. Commission staff do not anticipate any adverse impacts to the smelt population as a result of the change.
Section 69.12 (relating to season, sizes and creel limits--Lake Erie and Lake Erie tributaries) with the changes described in the notice of proposed rulemaking allowed burbot to be taken by hook and line year 'round, while they could be taken by SCUBA divers by nonmechanical spears or gigs only during the season, June 1 to September 30. There is no sound fisheries management reason for this distinction. Therefore, the Commission, on final-form rulemaking, amended this section to allow the taking of burbot by nonmechanical spears or gigs year around. The Commission amended this section to read as set forth in Annex A.
F. Paperwork
This final-form rulemaking will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
This final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. This final-form rulemaking will impose no new costs on the private sector or the general public.
H. Public Involvement
A notice of proposed rulemaking was published at 34 Pa.B. 3603 (July 10, 2004). The Commission did not receive any public comments concerning the proposed amendments to §§ 61.8 and 65.24 (with regard to Lower Burrell Park Pond). The Commission received one public comment supporting the proposed changes to §§ 65.1--65.3, 65.5--65.7, 65.10 and 65.24 (with regard to West Branch Delaware River ) and § 69.12. 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 the comments that were 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 61, 65 and 69, are amended by amending §§ 61.1, 61.8, 65.1--65.3, 65.5--65.7 and 65.24 to read as set forth at 34 Pa.B. 3603 and by amending §§ 65.10 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, 34 Pa.B. 3603 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, 34 Pa.B. 3603 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect January 1, 2005.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: 48A-156 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 § 65.10. Early Season Trout Stocked Waters Program.
(a) The Executive Director, with the approval of the Commission, may designate waters as part of the Early Season Trout Stocked Waters Program. The designation of waters as part of the Early Season Trout Stocked Waters Program shall be effective upon publication of a notice of designation in the Pennsylvania Bulletin.
(b) It is unlawful to fish in waters designated as part of the Early Season Trout Stocked Waters Program except in compliance with the following requirements:
(1) Notwithstanding § 63.3 (relating to fishing in approved trout waters), fishing is permitted from March 1 until midnight, March 31.
(2) The daily creel limit is: three combined species during the period from the day after Labor Day until midnight, March 31 of the following year. Except during this period, the Statewide creel limits apply (See § 61.1 (relating to Commonwealth inland waters).)
(3) Except as otherwise provided in this section, Statewide regulations (including size and creel limits) apply to waters in the Early Season Trout Stocked Waters Program.
CHAPTER 69. FISHING IN LAKE ERIE AND BOUNDARY LAKES § 69.12. Seasons, sizes and creel limits--Lake Erie and Lake Erie tributaries.
* * * * * (f) Subject to the provisions of subsections (d) and (e), the following seasons, sizes and creel limits apply to Lake Erie, Lake Erie tributaries and Presque Isle Bay, including peninsular 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 January 1 to midnight March 15 and 12:01 a.m. the first Saturday
in May to December 3118 inches 4 BASS
Largemouth
Smallmouth
January 1 to opening day of trout season in April and first Saturday after June 11 until December 31 15 inches 4 (combined species only 2 of which may be lake trout). Opening day of trout season in
April until first Saturday after
June 11.*20 inches TROUT and SALMON First Saturday after April 11 until midnight Labor Day. 9 inches 5 (combined species only 2 of which may be lake trout). 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 BASS Open year round None 50 (combined species) YELLOW PERCH From December 1 Through
March 317 inches 20 From April 1 through
November 308 inches 20 BAIT FISH
FISH BAIT
Open year round None 50 (combined species) BURBOT (when taken by hook
and line or when taken by
SCUBA divers by use of nonmechanical spears or gigs
at a depth of at least 60 feet)Open year-round None 5 Smelt (when taken by hook and line) Open year-round None None ALL OTHER SPECIES Inland 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, Lake Erie tributaries 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. 04-2103. Filed for public inspection November 24, 2004, 9:00 a.m.]
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