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PA Bulletin, Doc. No. 12-1945

RULES AND REGULATIONS

Title 58—RECREATION

FISH AND BOAT COMMISSION

[ 58 PA. CODE CH. 61 ]

Fishing; Seasons, Sizes and Creel Limits

[42 Pa.B. 6289]
[Saturday, October 6, 2012]

 The Fish and Boat Commission (Commission) amends Chapter 61 (relating to seasons, sizes and creel limits). 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 on January 1, 2013.

B. Contact Person

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

C. Statutory Authority

 The amendment to § 61.8 (relating to Lehigh River, Schuylkill River and tributaries) is published under the statutory authority of section 2102(b) of the code (relating to rules and regulations).

D. Purpose and Background

 The final-form rulemaking is designed to improve, enhance and update the Commission's fishing regulations. The specific purpose of the amendment is described in more detail under the summary of change.

E. Summary of Change

 The Lehigh and Schuylkill Rivers represent the two largest tributaries to the Delaware River, draining 3,529.7 km2 and 4,951.2 km2, respectively. The annual numbers of American shad that migrate to both rivers is dependent upon successful passage at multiple fishways. The first of these fishways on the Lehigh River is situated near the confluence with the Delaware River at Easton Dam (RM 0.0). On the Schuylkill River, the first impediment to shad passage is the Fairmount Dam (RM 8.5). Multiple factors contribute to the successful passage of shad, such as adequate fishway attraction flows, river flow, river water temperature and abundance of the returning population. Shad passage varies annually as monitored at both fishways by surveillance cameras and passage efficiency is poor. For example, passage of shad monitored through the Chain Dam (RM 3.0) on the Lehigh River is typically less than 20% of Easton passage. Only 5.0% of the American shad that passed Easton Dam passed the Chain Dam in 2011. Shad passage is not monitored on any upstream fishway on the Schuylkill River, with the exception of some monitoring in 2010 and 2011 by Normandeau Associates for Exelon Energy at Black Rock Dam.

 Both rivers have been the subject of long-term restoration efforts by the Commission. American shad fry resulting from fish culture at the Commission's Van Dyke Hatchery have been stocked in both the Lehigh and Schuylkill Rivers for many years. The long-term contribution of hatchery-stocked fish to the annual runs of American shad is 74% and 96% for the Lehigh River and Schuylkill Rivers, respectively.

 Since 1995 on the Lehigh River and 2005 on the Schuylkill River, the American shad season has been open year-round with a daily creel limit of one shad, with no minimum size on both rivers; however, the fishery is focused on the Delaware River mainstem. An estimate of angler use and harvest is not available for either the Lehigh or Schuylkill River. A few anglers have been noted to fish the tidal reach of the Schuylkill River.

 Management of marine and diadromous fisheries in state waters on the Atlantic Coast is coordinated through the Atlantic States Marine Fisheries Commission (ASMFC). The adoption of Amendment 3 to the ASMFC Interstate Fishery Management Plan for Shad and River Herring in 2010 calls for a moratorium on commercial fisheries and a catch and release regulation for recreational American shad fisheries that cannot be demonstrated to be sustainable by January 1, 2013. Given that both the Lehigh and Schuylkill Rivers remain under restoration, that there is currently inefficient fishway passage and that data that can demonstrate sustainability is currently inadequate, the Commission cannot determine that the fisheries are sustainable on either river. The Commission therefore amends § 61.8 to read as set forth in the proposed rulemaking published at 42 Pa.B. 1862 (April 7, 2012) to impose catch and release only regulations for American shad in both rivers.

F. Paperwork

 The final-form rulemaking will not increase paperwork and will not create new paperwork requirements.

G. Fiscal Impact

 The final-form rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The final-form rulemaking will not impose new costs on the private sector or the general public.

H. Public Involvement

 A notice of proposed rulemaking was published at 42 Pa.B. 1862. The Commission did not receive any public comments concerning the proposed rulemaking.

Findings

 The Commission finds that:

 (1) Public notice of intention to adopt the amendment 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 no public comments were received.

 (3) The adoption of the amendment 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 Chapter 61, are amended by amending § 61.8 to read as set forth at 42 Pa.B. 1862.

 (b) The Executive Director will submit this order and 42 Pa.B. 1862 to the Office of Attorney General for approval as to legality and form as required by law.

 (c) The Executive Director shall certify this order and 42 Pa.B. 1862 and deposit them with the Legislative Reference Bureau as required by law.

 (d) This order shall take effect upon publication in the Pennsylvania Bulletin.

JOHN A. ARWAY, 
Executive Director

 Fiscal Note: Fiscal Note 48A-234 remains valid for the final adoption of the subject regulation.

[Pa.B. Doc. No. 12-1945. Filed for public inspection October 5, 2012, 9:00 a.m.]


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