PROPOSED RULEMAKING

[58 PA. CODE CH. 65]

Fishing; Special Trout Fishing Regulations

[35 Pa.B. 2634]

   The Fish and Boat Commission (Commission) proposes to amend Chapter 65 (relating to special fishing regulations). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The proposed rulemaking would simplify the existing special trout fishing regulations by combining certain existing programs and making certain conditions consistent across all special trout regulation programs. The proposed rulemaking has a focus on preserving opportunities for the harvest of trophy trout; however, the Commission would also like to receive public comment on an alternative simplification scheme that has a focus on catch and release.

A.  Effective Date

   The proposed rulemaking, if approved on final-form, will go into effect on January 1, 2006.

B.  Contact Person

   For further information on the proposed rulemaking, contact Jason E. Oyler, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7827. This proposed rulemaking is available on the Commission's website: www.fish.state. pa.us.

C.  Statutory Authority

   The proposed amendments to §§ 65.2, 65.3, 65.4a, 65.5, 65.6, 65.7 and 65.24 and the addition of §§ 65.14 and 65.15 (relating to catch and release fly-fishing only areas; and catch and release all-tackle areas) are published under the statutory authority of sections 2102 and 2307 of the code (relating to rules and regulations; and waters limited to specific purposes).

D.  Purpose and Background

   The proposed rulemaking is designed to simplify, improve and make consistent the Commission's special trout regulations. The specific purpose of the proposed amendments is described in more detail under the summary of proposals.

E.  Summary of Proposals

   The Commission is committed to simplifying regulations used in trout management. Although a 1997 study of ex-license buyers indicated that the complexity of regulations was not a primary reason for not purchasing a fishing license, attendees at the Trout Summit 2002 and members of the Trout Management Discussion Group have encouraged the Commission to simplify these regulations. Results of studies on waters managed with these special regulations have shown that benefits are difficult to discern among and between the different programs. The Commission believes that consolidation and simplification is possible and that the Commission will be able to continue to conserve fish while reducing impediments to fishing.

   Consolidation has other benefits as well. It will reduce the number of different signs/posters that are necessary to adequately inform anglers of the special regulations. It will also increase angler understanding and compliance with the regulations with fewer programs to remember.

   Currently, there are a number of special regulations programs used in trout stream management. They include Delayed Harvest Fly-Fishing-Only (FFO), Heritage Trout Angling, Trophy Trout, All-Tackle (AT) Trophy Trout, Catch-and-Release, Delayed Harvest Artificial Lures Only (ALO), Wild Brook Trout Enhancement and at least three different miscellaneous special regulations. The Commission does not envision any changes to the recently created Wild Brook Trout Enhancement Program. The Commission envisions only minor changes to the Delayed Harvest ALO Program to encourage consistency of certain conditions among all special trout regulation programs. Earlier this year, the Commission eliminated the Selective Harvest and AT Selective Harvest Programs. The Commission now proposes to continue its efforts to simplify and consolidate special trout regulations in this notice of proposed rulemaking.

   As part of the simplification process and to promote consistency within the special trout regulations programs, the Commission proposes eliminating the barbless hook requirements, establishing uniform 24 hours of legal angling and eliminating restrictions on wading. Given problems in ''pinching'' barbs on tiny flies, difficulty in determining whether or not ''pinched'' barbs are legal or not, lack of substantial scientific literature supporting barbless hooks as a means to reduce mortality of released fish, and limited availability of manufactured barbless hooks, the Commission proposes discontinuing the barbless hook requirement. The Commission proposes that fishing should be permitted on a 24-hour basis rather than the ''1 hour before sunrise to 1 hour after sunset'' requirement currently on some, but not all, special trout regulations waters. The Commission further proposes that wading should be permitted in all waters.

   The proposed rulemaking will result in fewer programs and simplified regulations within programs. In undertaking the simplification of these special trout regulations, the Commission was presented with two options: one focusing on catch and release and the other focusing on trophy trout. The primary difference between the two alternatives is that the option focusing on trophy trout contains a provision for taking one large trout and the option focusing on catch and release does not.

   The programs under the two options are shown on the following chart:

2005 Program	Commission Proposal Trophy Trout Focus	Alternative C & R Focus
Wild Brook Trout	Wild Brook Trout	Wild Brook Trout
Delayed Harvest ALO	Delayed Harvest ALO	Delayed Harvest ALO
Heritage Trout Angling Delayed Harvest FFO	Catch-and-Release FFO	Catch-and-Release FFO
Catch-and-Release Trophy Trout (14-inch)	Trophy Trout ALO (24-inch)	Catch-and-Release ALO
AT Trophy Trout (14-inch) Allegheny River (14-inch)	Trophy Trout AT (24-inch)	Catch-and-Release AT
Spring Creek Valley Creek	Catch-and-Release AT	Catch-and-Release AT

   The proposal for which the Commission primarily seeks public comment contains the trophy trout focus. However, the Commission also seeks public comment on an alternative proposal that focuses on catch and release and would not allow the harvesting of any fish in certain special regulation waters.

   The Commission's primary proposal retains the Wild Brook Trout Enhancement Program and Delayed Harvest ALO (with time of day fishing restriction removed) and consolidates the remaining eight special regulations into four programs, including the new Catch and Release FFO, the renamed Trophy Trout AT, the renamed Trophy Trout ALO and the new Catch and Release AT.

   The Commission's proposal has the following components:

   (1)  The Commission proposes establishing a new program called Catch and Release FFO. The Heritage Trout Angling Program and the Delayed Harvest FFO Program will be eliminated, and all waters currently in them (7 waters in the Heritage Program and 26 waters in the Delayed Harvest FFO Program) will be designated into the new Catch-and-Release FFO Program. This program will provide no closed season with no harvest, no hourly restrictions, no restriction on wading and no requirement for barbless hooks. During the substantial public commentary regarding the proposal to permit AT on delayed harvest waters during the harvest season, a large segment of the fly fishing community indicated a preference for no-harvest in the current Delayed Harvest FFO Program. The main change for current delayed harvest FFO waters is the removal of the former summer harvest season.

   The effect of the proposed amendments are shown on the following chart:

Action	Program	Number Waters	Harvest Season	Size Limit	Creel Limit	Tackle
New Program § 65.14	Catch and Release FFO	33	None	--	None	FFO
Eliminate § 65.2	Delayed Harvest FFO Areas	26	June 15 through Labor Day	9"	3	FFO
Eliminate § 65.3	Heritage Trout Angling Program	7	None	--	None	FFO

   (2)  The Commission proposes to rename the All Tackle Trophy Trout to Trophy Trout All Tackle. This program will offer a year-round harvest season (increased from mid-April to Labor Day) with a 24-inch minimum length limit (increased from 14 inches), a one trout daily creel limit and no wading restrictions. The area of the Allegheny River, Warren County, will be moved from miscellaneous special regulations in § 65.24 (relating to miscellaneous special regulations) to the Trophy Trout AT program in renamed § 65.4a (relating to all-tackle trophy trout).

   The effect of the proposed changes is shown in the following table:

Action	Program	Number Waters	Harvest Season	Size Limit	Creel Limit	Tackle
New Name § 65.4a	Trophy Trout AT	5	Year-round	24"	1	AT
Rename § 65.4a	AT Trophy Trout	4	Mid-April through Labor Day	14"	2	AT
Remove from § 65.24	Allegheny River, Warren County	1	Mid-April through Labor Day	14"	2	AT

   (3)  The Commission proposes renaming the existing Trophy Trout Program to the Trophy Trout Artificial Lures Only Program and eliminating the existing Catch and Release Program. All waters in the existing Trophy Trout Program will remain in the renamed program and all waters in the existing Catch and Release Program will be designated to the Trophy Trout ALO Program. Tackle for this program will remain ALO as currently specified for both existing programs, except barbed hooks will now be allowed. Fishing will be permitted year-round with no hourly restriction and no taking of bait fish or fish bait. A 24 inch minimum length limit and a one trout per day creel limit will apply.

   The effect of these proposed amendments is shown in the following table:

Action	Program	Number Waters	Harvest Season	Size Limit	Creel Limit	Tackle
New Name § 65.7	Proposed Trophy Trout ALO	26	Year-round	24-inch	1	ALO
Rename § 65.7	Trophy Trout Program	8	Mid-April through Labor Day	14-inch	2	ALO
Eliminate § 65.5	Catch-and- Release Areas	18	None	--	--	ALO

   (4)  The Commission proposes creating a new program called Catch and Release All-Tackle. One miscellaneous special regulation water, Spring Creek, Centre County, and one water designated under § 65.23 (relating to special restrictions on polluted zones), Valley Creek, Chester County, will be designated into this new program.

   The effect of the proposed amendments is shown in the following table:

Action	Program	Number Waters	Harvest Season	Size Limit	Creel Limit	Tackle
New Program § 65.16	Catch and Release AT	2	None	--	None	AT
Remove from § 65.23	Valley Creek	1	None	--	None	Valley Forge National Park special bait restrictions apply
Remove from § 65.24	Spring Creek	1	None	--	None	AT

   (5)  The Commission proposes amending the Delayed Harvest ALO Program to remove the daily fishing time restriction and to clarify that wading is permitted and a current trout/salmon stamp is required.

   Accordingly, the Commission proposes that §§ 65.2, 65.3, 65.4a, 65.5, 65.6, 65.7 and 65.24 be amended to read as set forth in Annex A. The Commission further proposes the addition of §§ 65.14 and 65.15 to read as set forth in Annex A.

   In addition to the proposal containing the preceding components, the Commission also seeks public comment on an alternative proposal that focuses on catch and release. The proposal focusing on catch and release is similar to the proposal focusing on trophy trout in that it retains the Wild Brook Trout Enhancement Program and the Delayed Harvest ALO (with the time of day fishing restrictions removed) and in that the Heritage Trout Angling Program and Delayed Harvest FFO Program will be eliminated and all waters in them will be designated into a new Catch and Release FFO Program. However, the Catch and Release Program and Trophy Trout Program, under the catch and release alternative, would become Catch and Release ALO fishing areas. Under the alternative proposal, the AT Trophy Trout waters and the Allegheny River special regulation area would be combined with Spring and Valley Creeks into a new Catch and Release AT Program. The catch and release alternative proposal would prohibit harvesting of any trout on waters regulated under the Catch and Release FFO, Catch and Release ALO and Catch and Release AT Programs.

F.  Paperwork

   The proposed rulemaking will not increase paperwork and will create no new paperwork requirements.

G.  Fiscal Impact

   The proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will impose no new costs on the private sector or the general public.

H.  Public Comments

   Interested persons are invited to submit written comments, objections or suggestions about the proposed rulemaking to the Executive Director, Fish and Boat Commission, P. O. Box 67000, Harrisburg, PA 17106-7000 within 45 days after publication of this notice in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.

   Comments also may be submitted electronically by completing the form at www.state.pa.us/Fish/regcomments. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.

DOUGLAS J. AUSTEN, Ph.D.,   
Executive Director

   Fiscal Note: 48A-170. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 58. RECREATION

PART II. FISH AND BOAT COMMISSION

Subpart B. FISHING

CHAPTER 65. SPECIAL FISHING REGULATIONS

§ 65.2. [Delayed harvest fly-fishing only areas] (Reserved).

   (a)  The Executive Director, with the approval of the Commission, may designate waters as delayed-harvest, fly-fishing only areas. The designation of waters as delayed-harvest, fly-fishing only areas shall be effective when the waters are so posted after publication of a notice of designation in the Pennsylvania Bulletin.

   (b)  It is unlawful to fish in designated and posted delayed-harvest fly-fishing only areas except in compliance with the following requirements:

   (1)  Fishing may be done with artificial flies and streamers constructed of natural or synthetic materials so long as all flies are constructed in a normal fashion on a single hook with components wound on or about the hook. Anything other than these items is prohibited.

   (2)  Fishing shall be done with tackle which is limited to fly rods, fly reels and fly line with a maximum of 18 feet in leader material or monofilament line attached. Spinning, spincast and casting rods and reels are prohibited.

   (3)  The use or possession of any natural bait, baitfish, fishbait, bait paste and similar substances, fish eggs (natural or molded) or any other edible substance is prohibited.

   (4)  Fishing hours are: 1 hour before sunrise to 1 hour after sunset during the regular and any extended trout season.

   (5)  Minimum size is: 9 inches, caught on, or in possession on, the waters under regulation.

   (6)  The daily creel limit is: Three combined species except during the period after Labor Day and before June 15 when the daily limit shall be zero trout combined species, caught on or in possession on the waters under regulation.

   (7)  Taking of baitfish is prohibited.]

§ 65.3. [Heritage Trout Angling Program] (Reserved).

   (a)  The Executive Director, with the approval of the Commission, may designate waters as areas subject to Heritage Trout Angling Program regulations. The designation of waters as Heritage Trout Angling Program areas shall be effective when the waters are so posted after publication of a notice of designation in the Pennsylvania Bulletin.

   (b)  It is unlawful to fish in designated and posted Heritage Trout Angling Program areas except in compliance with the following requirements:

   (1)  Fishing may be done with artificial flies and streamers constructed of natural or synthetic materials so long as all flies are constructed in a normal fashion on a single barbless hook with components wound on or about the hook. Anything other than these items is prohibited.

   (2)  Fishing shall be done with tackle which is limited to fly rods, fly reels and fly line with a maximum of 18 feet in leader material or monofilament line attached. Spinning, spincast and casting rods and reels are prohibited.

   (3)  The use or possession of any natural bait, baitfish, fishbait, bait paste and similar substances, fish eggs (natural or molded) or any other edible substance is prohibited.

   (4)  Fishing hours are 1 hour before sunrise to 1 hour after sunset.

   (5)  No trout may be killed or had in possession.

   (6)  There is no closed season.

   (7)  Wading is permitted unless otherwise posted.

   (8)  Taking of baitfish or fishbait is prohibited.]

§ 65.4a. [All-tackle trophy] Trophy trout all-tackle areas.

   (a)  The Executive Director, with the approval of the Commission, may designate waters as [all-tackle] trophy trout all-tackle areas. The designation of waters as [all-tackle] trophy trout all-tackle areas shall be effective when the waters are so posted after publication of a notice of designation in the Pennsylvania Bulletin.

   (b)  It is unlawful to fish in designated and posted [all-tackle] trophy trout all-tackle areas except in compliance with the following requirements:

*      *      *      *      *

   (2)  Minimum size is[: 14] 24 inches, caught on, or in possession on, the waters under regulation.

   (3)  The daily creel limit is[: two] one trout[--combined species--from 8 a.m. on the opening day of trout season in April until midnight Labor Day, except during the period from the day after Labor Day to the opening day of regular trout season of the following year, when no trout may be killed or had in possession on the waters under regulation].

*      *      *      *      *

§ 65.5. [Catch-and-release areas] (Reserved).

   (a)  The Executive Director, with the approval of the Commission, may designate waters as catch-and-release areas. The designation of waters as catch-and-release artificial lures only areas shall be effective when the waters are so posted after publication of a notice of designation in the Pennsylvania Bulletin.

   (b)  It is unlawful to fish in designated and posted catch-and-release areas except in compliance with the following requirements:

   (1)  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. Barbed hooks are prohibited; fishing may be done with barbless hooks only.

   (2)  The use or possession of any natural bait, baitfish, fishbait, bait paste and similar substances, fish eggs (natural or molded) or any other edible substance is prohibited.

   (3)  Fishing hours are 1 hour before sunrise to 1 hour after sunset.

   (4)  No trout may be killed or had in possession.

   (5)  The catch and release program is open to fishing the year-round; there is no closed season.

   (6)  Wading is permitted unless otherwise posted.

   (7)  Taking of baitfish or fishbait is prohibited.]

§ 65.6. Delayed harvest artificial lures only areas.

*      *      *      *      *

   (b)  It is unlawful to fish in designated and posted delayed-harvest, artificial lures only areas except in compliance with the following requirements:

*      *      *      *      *

   (3)  [Fishing hours are: 1 hour before sunrise to 1 hour after sunset during the regular and any extended trout season.] A current trout/salmon stamp is required.

*      *      *      *      *

§ 65.7. Trophy [Trout Program] trout artificial lures only areas.

   (a)  The Executive Director, with the approval of the Commission, may designate waters as trophy trout artificial lures only areas. The designation of waters as trophy trout artificial lures only areas shall be effective when the waters are so posted after publication of a notice of designation in the Pennsylvania Bulletin.

   (b)  It is unlawful to fish in designated and posted trophy trout artificial lures only areas except in compliance with the following requirements:

   (1)  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. Anything other than these items is prohibited.

*      *      *      *      *

   (3)  The program is open to fishing [the entire year] year-round; there is no closed season.

   (4)  The minimum size is [14] 24 inches, caught on or in possession on the waters under regulation.

   (5)  The daily creel limit is [two] one trout [--combined species--except during the period from the day after Labor Day to 8 a.m. of the opening day of regular trout season of the following year, when no trout may be killed or had in possession on the waters under regulation].

*      *      *      *      *

   (7)  A current trout/salmon stamp is required.

§ 65.14. Catch and release fly-fishing only areas.

   (a)  The Executive Director, with the approval of the Commission, may designate waters as catch and release fly-fishing only areas. The designation of waters as catch and release fly-fishing only areas shall be effective when the waters are so posted after publication of a notice of designation in the Pennsylvania Bulletin.

   (b)  It is unlawful to fish in designated and posted catch and release fly-fishing only areas except in compliance with the following requirements:

   (1)  Fishing may be done with artificial flies and streamers constructed of natural or synthetic materials so long as all flies are constructed in a normal fashion on a single hook with components wound on or about the hook. Anything other than these items is prohibited.

   (2)  Fishing shall be done with tackle which is limited to fly rods, fly reels and fly line with a maximum of 18 feet in leader material or monofilament line attached. Spinning, spincast and casting rods and reels are prohibited.

   (3)  The use or possession of any natural bait, baitfish, fishbait, bait paste and similar substances, fish eggs (natural or molded) or any other edible substance is prohibited.

   (4)  Trout may not be killed or had in possession.

   (5)  The program is open to fishing year-round; there is no closed season.

   (6)  Taking of baitfish or fishbait is prohibited.

   (7)  A current trout/salmon stamp is required.

§ 65.15. Catch and release all-tackle areas.

   (a)  The Executive Director, with the approval of the Commission, may designate waters as catch and release all-tackle areas. The designation of waters as catch and release all-tackle areas shall be effective when the waters are so posted after publication of a notice of designation in the Pennsylvania Bulletin.

   (b)  It is unlawful to fish in designated and posted catch and release all-tackle areas except in compliance with the following requirements:

   (1)  Trout may not be killed or had in possession.

   (2)  The program is open to fishing year round, there is no closed season.

   (3)  A current trout/salmon stamp is required.

§ 65.24. Miscellaneous special regulations.

   The following waters are subject to the following miscellaneous special regulations:

County	Name of Water	Special Regulations
*      *      *      *      *
[Centre]	[Spring Creek--16.6 miles downstream from the SR 3010 bridge to the mouth (excluding the established Heritage Trout Angling project at Fisherman's Paradise and the exhibition area in Bellefonte). This area shall be known as ''Spring Creek Special Trout Management Area.'']	[Trout (all species)--No closed season under no-harvest regulations with no tackle restrictions.]
*      *      *      *      *
[Warren]	[Allegheny River--8.75 miles downstream from the outflow of the Allegheny Reservoir to the confluence with Conewago Creek]	[Trout-minimum size limit--14 inches; daily creel limit--2 trout per day (combined species) from 8 a.m. on the opening day of regular trout season through midnight Labor Day, except during the period from the day after Labor Day to the opening day of regular trout season of the following year, when no trout may be killed or had in possession. Other inland seasons, sizes and creel limits apply.]
*      *      *      *      *

[Pa.B. Doc. No. 05-839. Filed for public inspection April 29, 2005, 9:00 a.m.]

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