RULES AND REGULATIONS
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 63 AND 69]
Fishing
[35 Pa.B. 5008] The Fish and Boat Commission (Commission) amends Chapters 63 and 69 (relating to general fishing regulations; and fishing in Lake Erie and boundary lakes). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The final-form rulemaking clarifies the definition of ''approved trout waters.'' The final-form rulemaking also eliminates the minimum size limit for recreationally caught yellow perch in Lake Erie and its tributaries during the April 1 through November 30 period and for commercially caught yellow perch and increases the recreational creel limit to 30.
A. Effective Date
The amendment to § 63.3 (relating to fishing in approved trout waters) will go into effect on January 1, 2006. The amendments to §§ 69.12 and 69.33 (relating to seasons, sizes and creel limits--Lake Erie and Lake Erie tributaries; and use of trap nets) will go into effect upon publication in the Pennsylvania Bulletin and not on January 1, 2006, as set forth in the notice of proposed rulemaking.
B. Contact Person
For further information on the final-form rulemaking, contact Laurie E. Shepler, Chief Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This final-form rulemaking is available on the Commission's website at www.fish.state.pa.us.
C. Statutory Authority
The amendments to §§ 63.3 and 69.12 are published under the statutory authority of section 2102 of the code (relating to rules and regulations). The amendments to § 69.33 are published under the statutory authority of section 2903 of the code (relating to boat and net licenses for boundary lakes).
D. Purpose and Background
The final-form rulemaking is designed to improve, enhance, clarify and update the Commission's fishing regulations. The specific purpose of the amendments is described in more detail under the summary of changes.
E. Summary of Changes
(1) Section 63.3. Prior to late 2002, the Commission's regulations defined the list of approved trout waters as the list contained in the ''Summary Book.'' That definition did not allow the Commission much flexibility in adding and removing waters from the list. Accordingly, the Commission amended its regulations to define the term as ''designated waters open to public fishing that are stocked with trout.''
It recently has come to the staff's attention that the definition may be read in a manner that is not entirely consistent with the way that the Commission historically has designated waters as approved trout waters. Specifically, the Commission historically has designated entire waters or sections of waters as being approved trout waters even though they may contain parts that are closed to public fishing and therefore are not stocked with trout. These waters or sections, however, are primarily open to the public. To remove the portions that are closed to the public from the list of approved trout waters would create a complicated patchwork of waters that are approved trout waters and those that are not. It would create difficulty in enforcement and would cause confusion among anglers, which was not the intention of the regulatory definition of approved trout waters. To clarify that the definition of ''approved trout waters'' is consistent with the Commission's historical approach, the Commission amended § 63.3 to read as set forth in the notice of proposed rulemaking.
(2) Sections 69.12 and 69.33. Dramatic declines in Lake Erie yellow perch in Commonwealth waters during the 1990s required conservative harvest regulations for the fisheries. In 1996, the daily creel limit was reduced to 20 perch and an 8-inch minimum size limit was implemented to reduce exploitation and enhance spawning stock size. In 2002, the Commission amended its regulations to reduce the minimum size limit from 8 inches to 7 inches during the December 1 through March 31 period, while maintaining the 8-inch minimum size limit during the April 1 through November 30 period. An 8.5-inch minimum size limit is in effect for commercially caught yellow perch in this Commonwealth.
Other jurisdictions have implemented yellow perch conservation measures, but none continue to be as conservative as the Commonwealth. None of the jurisdictions have a recreational minimum size limit. Ohio has a creel limit of 30. Other jurisdictions have creel limits of 50.
By 2004, the Lake Erie perch had recovered to levels of abundance seen in the late 1980s with a 350% increase since the early 1990s. Even more dramatic, the 2004 population will more than double in 2005 due to the very large 2003 year-class. The 2004 boat angler survey estimated Commonwealth anglers harvested over 500,000 perch of the 750,000 perch that were caught. Thus, about 198,000 yellow perch were released because they were undersize. Catch and release mortality can be high because of hydraulic decompressing when there are large numbers of undersize yellow perch. With the very strong 2003 year class growing into the population as 3 year olds in 2006, losses could far exceed those seen in previous years.
The opportunity exists to reduce these losses and allow this Commonwealth's yellow perch anglers to benefit from the large yellow perch populations with an increase in harvest with large yellow perch populations. Appropriate regulatory changes include eliminating the minimum size limit for recreationally caught yellow perch during the April 1 through November 30 period and for commercially caught yellow perch and increasing the recreational creel limit to 30. These actions will reduce the release rate and any associated mortality. The commercial catch will continue to be controlled with a quota set at 30,000 pounds for this Commonwealth for 2005.
The yellow perch population is strong in Lake Erie and this Commonwealth's portion of Lake Erie. The Commission's evaluations suggest that the exceptional fishing should be sustained for several years. Beyond that, fishing quality would depend on yellow perch reproductive success in the coming years. The Commission will continue to be diligent in its assessment of Lake Erie fish stocks and increase the agency's agility in responding to changes in population status.
The Commission amended §§ 69.12 and 69.33 to read 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
A notice of proposed rulemaking was published at 35 Pa.B. 3421 (June 18, 2005). Prior to the formal public comment period, the Commission received one written public comment concerning the proposed amendment to § 63.3. The Commission received one written public comment during the formal public comment period. Both expressed concerns regarding the impact that the proposed rulemaking would have on private property rights and the related economic effects. The Commission also entertained oral comments at several public meetings. With regard to the proposed amendments to §§ 69.12 and 69.33, the Commission received two written public comments. One supported the proposal; the other opposed it. 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 63 and 69, are amended by amending §§ 63.3, 69.12 and 69.33 to read as set forth at 35 Pa.B. 3421.
(b) The Executive Director will submit this order and 35 Pa.B. 3421 to the Office of Attorney General for approval as to legality as required by law.
(c) The Executive Director shall certify this order and 35 Pa.B. 3421 and deposit them with the Legislative Reference Bureau as required by law.
(d) The amendment to § 63.3 will go into effect on January 1, 2006. The amendments to §§ 69.12 and 69.33 will go into effect upon publication in the Pennsylvania Bulletin.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: Fiscal Note 48A-167 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 05-1674. Filed for public inspection September 9, 2005, 9:00 a.m.]
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