FISH AND BOAT COMMISSION

[ 58 PA. CODE CH. 61 ]

Fishing; Seasons, Sizes and Creel Limits

 The Fish and Boat Commission (Commission) proposes to amend Chapter 61 (relating to seasons, sizes and creel limits). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code).

A. Effective Date

 The proposed rulemaking, if approved on final-form rulemaking, will go into effect on January 1, 2011.

B. Contact Person

 For further information on the proposed rulemaking, contact Jason E. Oyler, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This proposed rulemaking is available on the Commission's web site at www.fish.state.pa.us.

C. Statutory Authority

 The proposed amendments to §§ 61.1—61.3 (relating to Commonwealth inland waters; Delaware River, West Branch Delaware River and River Estuary; and Pymatuning Reservoir) are published under the statutory authority of section 2102 of the code (relating to rules and regulations).

D. Purpose and Background

 The proposed rulemaking is designed to improve, enhance and update the Commission's fishing regulations. The specific purposes of the proposed amendments are described in more detail under the summary of proposal.

E. Summary of Proposal

 Because mussels, sometimes referred to as clams in slang, have declined greatly in their populations and their ranges both Nationally and within this Commonwealth, the conservation of mussels faces many challenges. Nearly 82% (54 species) of this Commonwealth's native mussels are considered endangered, extirpated or of special concern (PABS 2008). Nationally, mussels are declining; 70% of the 297 native species have an endangered, threatened, special concern or extinct status (Williams and Neves, 1995).

 Under section §§ 61.1(d) and 61.2(d), harvest of up to 50 fish bait is permitted per day without seasons or size limits. Inland seasons, sizes and creel limits for fish bait apply to the Susquehanna and Lehigh Rivers under §§ 61.7 and 61.8 (relating to Susquehanna River and tributaries; and Lehigh River, Schuylkill River and tributaries). Under § 61.3(c), there are not season, size or creel restrictions on fish bait. Section 102 of the code (relating to definitions) defines ''fish bait'' as ''[u]nless otherwise provided by commission regulation, crayfish or crabs, mussels, clams and the nymphs, larvae and pupae of all insects spending any part of their life cycle in the water.''

 Harvest of endangered and threatened mussels is prohibited under §§ 75.1 and 75.2 (relating to endangered species; and threatened species). Since mussels as a group are severely threatened, additional reduction of mussel populations by harvest as fish bait should be prohibited. Specifically, with the existing laws, the Commission is concerned that:

 (1) Rare species will be harvested because they are difficult to identify correctly. Unless mussels are prohibited from bait use, anglers or other collectors could inadvertently collect rare or protected species. Additionally, enforcement of laws prohibiting harvest of protected species will not be effective if the Commission's waterways conservation officers are not well trained in the identification of mussels.

 (2) Commercial pressure for mussel harvest for the pearl industry could decimate populations. Mussel shells are collected and pieces of nacre are used to seed pearl-producing oysters. At this time, a commercial harvester can legally take large quantities of mussels, remov-ing many thousands of pounds of mussels a year. With a legal limit of 50 mussels per day and no season, 10 commercial collectors could legally take 500 mussels per day (182,500 mussels per year) as fishbait under existing Commission regulations. Commercial mussel poachers have been convicted for illegal harvest in West Virginia, Ohio, Illinois, Indiana, Michigan and in the southeastern United States. By prohibiting a legal possession limit of mussels as fishbait, the Commonwealth can better protect its mussel resource.

 (3) The transportation of aquatic invasive mussels could result in the introduction to additional waterways. Discharged zebra mussel and quagga mussels used for bait present significant risk for invasive mussel infestation. Although it is unlawful to possess the exotic zebra mussel and the closely related quagga mussel, they may be inadvertently transported to otherwise uninfested waters as fishbait.

 The Pennsylvania Biological Survey's Bivalve Subcommittee and the Mollusk Committee have requested that the current mussel harvest with a Pennsylvania fishing license be disallowed. Other states, such as West Virginia, Ohio, Maryland, New Jersey, New York, Indiana and Illinois, have laws making mussel harvest illegal.

 For these reasons, the Commission proposes to prohibit the harvest of live mussels by amending §§ 61.1—61.3 to read as set forth in Annex A.

F. Paperwork

 The proposed rulemaking will not increase paperwork and will not create new paperwork requirements.

G. Fiscal Impact

 The proposed rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will not impose new costs on the private sector or the general public, except to the degree there is commercial harvest of mussels in the Commonwealth.

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 30 days after publication in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.

 Comments also may be submitted electronically by completing the form at www.fishandboat.com/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. Electronic comments submitted in another manner will not be accepted.

JOHN A. ARWAY, 
Executive Director

 Fiscal Note: 48A-219. No fiscal impact; (8) recommends adoption.

ANNEX A

TITLE 58. RECREATION

PART II. FISH AND BOAT COMMISSION

Subpart B. FISHING

CHAPTER 61. SEASONS SIZES AND CREEL LIMITS

§ 61.1. Commonwealth inland waters.

*  *  *  *  *

 (d) Except as otherwise provided in this subpart, the following seasons, sizes and creel limits apply to inland waters of this Commonwealth and the Youghiogheny Reservoir:

SPECIES	SEASONS	MINIMUM SIZE	DAILY LIMIT
*  *  *  *  *
BAIT FISH FISH BAIT except mud bugs and mussels/clams	Open year-round	No minimum	50 (combined species)
MUD BUGS (dragonfly nymphs)	Open year-round	No minimum	Unlimited if taken from lakes, ponds, swamps and adjacent areas; 50 per day if taken from moving waters (rivers and streams)
MUSSELS/CLAMS	Closed year-round		0

*  *  *  *  *

§ 61.2. Delaware River, West Branch Delaware River and River Estuary.

*  *  *  *  *

 (d) The following seasons, sizes and creel limits apply to the Delaware River, West Branch Delaware River and to Delaware River tributaries, from the mouths of the tributaries upstream to the limit of the tidal influence and the Lehigh River from its mouth upstream to the first dam in Easton, Pennsylvania:

SPECIES	SEASONS	MINIMUM SIZE	DAILY LIMIT
*  *  *  *  *
BAIT FISH FISH BAIT, except mussels/clams	Open year-round	No minimum	50 (combined species)
MUSSELS/CLAMS	Closed year-round		0

*  *  *  *  *

§ 61.3. Pymatuning Reservoir.

*  *  *  *  *

 (c) Except as provided by special regulations, the following sizes and creel limits apply to Pymatuning Reservoir[; no closed season applies]:

SPECIES	SEASONS	MINIMUM SIZE	DAILY [CREEL] LIMIT
WALLEYE	Open year-round	15 inches	6
BASS	Open year-round	12 inches	5
MUSKELLUNGE AND MUSKELLUNGE HYBRIDS	Open year-round	30 inches	2
OTHERS (including Bait Fish and Fish Bait)	Open year-round	None	None
TURTLES (each species other than snapping turtles)	Open year-round	None	2
MUSSELS/CLAMS	Closed year-round		0

[Pa.B. Doc. No. 10-1201. Filed for public inspection July 2, 2010, 9:00 a.m.]

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