RULES AND REGULATIONS

Title 58--RECREATION

FISH AND BOAT COMMISSION

[58 PA. CODE CHS. 69 AND 111]

Fishing and Boating

[27 Pa.B. 1934]

   The Fish and Boat Commission (Commission) amends Chapters 69 and 111 (relating to fishing in Lake Erie and boundary lakes; and special regulations counties). The Commission is publishing these amendments under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The amendments relate to fishing and boating.

A.  Effective Date

   These amendments will go into effect immediately upon publication of this order adopting the regulations.

B.  Contact Person

   For further information on the amendments, contact Dennis Guise, Chief Counsel, (717) 657-4525, P. O. Box 67000, Harrisburg, PA 17106-7000.

C.  Statutory Authority

   These amendments are published under the statutory authority of sections 2102 and 5124 of the code (relating to rules and regulations; and particular areas of water).

D.  Purpose and Background

   The amendments are designed to update, modify and improve Commission regulations on fishing and boating. The specific purpose of the amendments is described in more detail under the summary of changes.

E.  Summary of Changes

   (1)  Sections 69.12 and 69.13 (relating to seasons, sizes and creel limits--Lake Erie; and seasons, sizes and creel limits--Lake Erie Tributaries). At its January 1996, meeting, the Commission, on final rulemaking, amended § 69.12 to provide that from 8 a.m. the first Saturday after April 11 until 12:01 a.m. the day after Labor Day, the daily limit for trout and salmon is 8 (combined species), only two of which can be lake trout and of theentire catch (combined species), only three can exceed 15 inches in length. After the final rulemaking was ap-proved, the Commission received inquiries and comments concerning the restriction as applied to Lake Erie and Presque Isle Bay. It was pointed out that, on Lake Erie and Presque Isle Bay, the three fish over 15 inches limit could be unduly restrictive since a relatively high proportion of the catch of trout and salmon exceeds 15 inches. At its January 1997 meeting, the Commission adopted an amendment that increases the number of trout and salmon per day that may exceed 15 inches in length from three to five. In addition, under § 51.5 (relating to correction of regulations), a correction is made to § 69.12.

   (2)  Section 111.58(d) (relating to Susquehanna County). The Laurel Lake Association, Inc. Boating Committee petitioned the Commission to reconsider the current 60 horsepower restriction on Laurel Lake, Susquehanna County. The petitioners cited the size of the lake, more stringent restrictions on lakes of similar size, environmental concerns of the use of gasoline motors on such a small lake, the lack of enforcement by the Commission of current restrictions, and interference with other uses of the lake caused by high speed operation of motorboats as valid reasons for the reconsideration.

   The Commission accepted the petition for further review at its July 1995 meeting and directed staff to prepare a report with recommendations for further action. After considering the use of the Laurel Lake and its physical constraints, staff recommended that additional restrictions on the operation of boats on this lake may be appropriate. The Boating Advisory Board (Board) reviewed the report and staff recommendations at its January 1996 meeting. The Board voted to recommend that the Commission consider an alternative regulation. The Commission's Boating Committee then recommended that the Commission not approve the staff and Board recommendations. The Commission therefore proposed to keep the present regulations in effect with one change, that is, to ban the operation of personal watercraft. At its July 1996 meeting, the Commission, on final rulemaking, adopted the personal watercraft amendment to § 111.58(d).

   At its July and October 1996 meetings, the Commission also authorized the publication of a separate notice of proposed rulemaking to seek public comment on proposed amendments further limiting the operation of boats with internal combustion motors. Although there are at least two distinct viewpoints from persons who reside around or boat on Laurel Lake, there is general agreement that the interests of safe boating on this small impoundment require restrictions on the number of boats on the lake. In addition, the Commission sought public comment on a proposed system whereby boats powered by internal combustion motors of up to 60 horsepower must have a special permit to operate on Laurel Lake.

   The proposed changes set forth in the notice of proposed rulemaking contained a number of provisions related to limiting the number of boats powered by internal combustion motors that may receive permits to operate on Laurel Lake and further restricting operations of these boats on the lake. The Commission specifically invited public comment on the various aspects of the proposal as alternatives. Although the proposed changes were not mutually exclusive, the Commission asked commentators to address comments to two distinct aspects of the proposal:

   (a)  Limiting the number of Laurel Lake permits for boats powered by internal combustion motors. One aspect of the proposal provided that no boats powered by internal combustion motors will be permitted to operate on Laurel Lake if the lake was not its site of principal operation during the preceding year and if Laurel Lake is not the site of principal operation in the year of the permit. The Commission envisioned a very simple application process for this permit whereby a registered boat owner would simply certify, under penalty of law, that Laurel Lake was the site of principal operation in the preceding year. Since Laurel Lake has no publicly-owned or controlled boating access, this means that only those boats that operated on the Lake in the past will be allowed to do so in the future. This will essentially freeze the number of internal combustion boats on Laurel Lake. This aspect of the proposal also provided that the number of permits for boats powered by internal combustion motors will gradually be reduced as boats go out of service, are moved elsewhere or are sold or transferred.

   (b)  Creating an internal combustion motorboat operating zone. Another aspect of the proposal provided that internal combustion motorboats, which hold special Laurel Lake permits, are restricted to slow, minimum height swell speed operation except in a marked operating zone on the upper pond where, at any one time, no more than two of these boats may operate at higher speeds (with or without water skiers) by boating in a counterclockwise direction in accordance with the Rules of the Road and other restrictions on operation of boats at Laurel Lake. The Commission asked commentators to provide comments and suggestions as to whether, if the operating zone aspect of the proposal were adopted, it would be necessary or appropriate to limit permits to boats that had used Laurel Lake as the site of principal operation during the preceding year and whether it would be necessary or appropriate to gradually phase out the number of internal combustion motorboats on the lake.

   Staff provided a worksheet to members of the Commission and the Board to assist them in addressing various aspects of the proposal as published in the Pennsylvania Bulletin.

   At its meeting on December 20, 1996, the Board considered the alternatives and recommended that the Commission not implement a special permit system to cover boats powered by internal combustion motors. The Board therefore recommended against freezing, and thereafter, gradually reducing the number of boats powered by internal combustion motors on this lake. The Board did recommend, however, that the Commission adopt regulations establishing a marked ''at-speed'' operating zone for boats powered by internal combustion motors. Under the Board's recommendation, these regulations would (1) include a restriction that no more than two boats powered by internal combustion motors may operate in the zone at any one time; (2) continue to limit the hours (from 12 noon until 6 p.m.) during which boats powered by internal combustion motors may operate at a speed higher than slow-minimum height swell speed in the zone; and (3) include other restrictions on competing activities such as swimming, rafting or fishing in the operating zone during times when boats powered by internal combustion motors are operating ''at speed'' or towing water skiers. It also was the consensus of the Board that boaters be given first priority in the marked zone but that other uses would be permitted in the absence of any boats in the zone.

   After giving full and fair consideration of the public comments on all sides of the issue, the Commission, at its January 1997 meeting, adopted the recommendation of the Board with an additional proviso, endorsed by many commentators, that internal combustion boats on Laurel Lake be limited to those owned and operated by resident property owners. Because there is no publicly-operated or maintained access to Laurel Lake, restricting internal combustion boats to resident property owners appears not only workable but consistent with past practice. From a safety standpoint, this restriction appears justified to help assure that operators are familiar with the configuration of this lake. The concept of an ''at-speed'' operating zone has proven workable on other Commonwealth waters, such as Lily Lake and Beltzville Lake. These lakes do not have the express limit of no more than two boats operating in the zone at any one time, but the zones on those lakes are larger than that adopted for Laurel Lake.

F.  Paperwork

   The amendments hereby adopted will not increase paperwork and will create no new paperwork requirements.

G.  Fiscal Impact

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

H.  Public Involvement

   A notice of proposed rulemaking containing the proposed changes to §§ 69.12 and 69.13 was published at 26 Pa.B. 6098. These changes did not attract public comment.

   A notice of proposed rulemaking containing the proposed changes to § 111.58 also was published at 26 Pa.B. 6098. The Commission received a total of 246 comments (plus petitions/attachments containing 268 signatures). These comments are in addition to comments received over many months.

   The comments can be divided into three groups. One group of comments asks the Commission to adopt regulations that would provide for electric motors only on Laurel Lake. These comments oppose grandfathering to permit the handful of 60 horsepower motorboats that used Laurel Lake in the past to continue to use it in the future. Because these commentators believe that operation of boats powered by internal combustion motors should be banned beginning in 1997, they take no position on the proposed ''at speed'' operating zone limited to two boats. In this round, the Commission received 135 individual comments endorsing electric motors only and no grandfathering. The Commission also received notice that the Northeast Division of the Pennsylvania Federation of Sportsmen Clubs had voted to endorse either electric motors or 10 horsepower motors on Laurel Lake. The reasons cited in support of the position in these comments include, generally, safety, protection of aquatic resources, protection of competing uses (swimming/fishing), environmental/noise/aesthetic concerns.

   On the other side, the Commission received 108 comments (plus petitions/attachments containing 268 signatures some of which duplicate individual commentators) opposed to additional restrictions on Laurel Lake except that most of these comments endorse the proposed at-speed operating zone. These comments include an extensive submission from the Laurel Lake Aquatics Association that includes signed letters from numerous persons who claim to own property at Laurel Lake. The reasons cited in support of the position in these comments include the existing restrictions on powerboating on Laurel Lake, the safety of past operations on the lake, the fun of boating, waterskiing, tubing and the like, property values and similar areas.

   The comments on both sides contained numerous comments from members of the same family and the same address. A majority of the comments on both sides appear to have similar content and many could be described as form letters. However, a good number of commentators have expressed distinct individual viewpoints.

   The Commission received three comments that do not fall into either distinct camp. One commentator appeared to endorse that part of the proposal that provided for freezing the number of powerboats at current levels, a permit system and a gradual phasing out of operation of boats operated by internal combustion motors. Another commentator objected to even electric motors on this lake because of the increased power of electric motors. The Susquehanna County Commissioners, who had previously written to the Commission to endorse electric motor/10 horsepower restrictions on Laurel Lake, wrote to inform the Commission that they had heard from a lot of constituents on the other side of the issue and now asked the Commission to consider all points of view.

   Copies of all public comments have been 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 that all comments received were considered.

   (3)  The adoption of the regulations 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 69 and 111, are amended by amending § 69.13 to read as set forth at 26 Pa.B. 6089, and by amending §§ 69.12 and 111.58 to read as set forth at Annex A.

   (b)  The Executive Director will submit this order, 26 Pa.B. 6089 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, 26 Pa.B. 6089 and Annex A and deposit them with the Legislative Reference Bureau as required by law.

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

PETER A. COLANGELO,   
Executive Director

   (Editor's Note:  A proposal to amend § 69.13(d), amended in this document, remains outstanding at 27 Pa.B. 1468 (March 22, 1997).)

   Fiscal Note:  Fiscal Note 48A-58 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 69.  FISHING IN
LAKE ERIE AND BOUNDARY LAKES

§ 69.12.  Seasons, sizes and creel limits--Lake Erie.

   (a)  It is unlawful to take, catch, kill or possess fish, except during the seasons specified in this section. It is not a violation of this section if a fish caught out of season from water where fishing for other species is lawful is immediately returned unharmed to the waters from which it was taken.

   (b)  It is unlawful to take, catch, kill or possess fish of less than the minimum size specified in this section. It is not a violation of this section if an undersized fish taken from waters where fishing is otherwise lawful is immediately returned unharmed to the waters from which it was taken.

   (c)  It is unlawful to take, catch or kill more than 1 day's limit of any species of fish as specified in the following chart during 1-calendar day. It is unlawful to possess more than 1 day's limit of any species of fish as specified in the following chart except under the following circumstances:

   (1)  A person may possess any number of lawfully caught fish at the person's residence.

   (2)  A person who is engaged in a fishing trip away from home for 2 or more consecutive calendar days may, while transporting fish from the place where caught to his residence, possess a number of fish equal to no more than two times the daily creel limit for that species of fish. In prosecution for violation of this section, it shall be a rebuttable presumption that a person transporting fish from a fishing site caught all of the fish during 1-calendar day.

   (3)  A fish will not be considered to be caught in violation of this section if it is immediately returned unharmed to the waters from which it was taken.

   (4)  A fish caught that is not to be counted in the creel limit shall be immediately released unharmed into the water from which taken. Except as otherwise provided in § 53.24 or § 63.40 (relating to tournament and fishing derby permits; and fishing tournament and fishing derbies), a fish placed on a stringer, or confined by any type of container, structure or device, or not returned immediately to the water, will be considered as part of the daily creel or possession limits. Fish returned to the water shall be handled carefully and be returned unharmed to the water from which taken.

   (5)  Fish may be given to another person, but the fish shall be counted in the donor's creel limit and neither the donor nor the recipient may kill or possess (while in the act of fishing) more than the limit allowed.

   (d)  The following seasons, sizes and creel limits apply to Lake Erie and Presque Isle Bay, including peninsula waters:

SPECIES	SEASONS	MINIMUM SIZE	DAILY LIMIT
MUSKELLUNGE and MUSKELLUNGE HYBRIDS PIKE    Northern	Inland seasons apply: See § 61.1	30 inches         24 inches	2 (combined species)         2
WALLEYE*	Open year-round	15 inches	6
BASS    Largemouth    Smallmouth	January 1 to opening day of trout season in April and first Saturday after June 11 until December 31   Opening day of trout season in April until first Saturday after June 11.*	15 inches         20 inches	4 (combined species)         1
TROUT and SALMON	First Saturday after April 11 until midnight Labor Day.         12:01 a.m. the day after Labor Day until midnight on the Friday before the first Saturday after April 11	9 inches           15 inches	8 (combined species only 2 of which may be lake trout). Of the entire catch (combined species) only 5 fish total may exceed 15 inches in length. 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	Open year-round	8 inches	20
BAIT FISH FISH BAIT	Open year-round	None	50 (combined species)
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 or Presque Isle Bay during the period from opening day of trout season in April until the first Saturday after June 11.

Subpart C.  BOATING

CHAPTER 111.  SPECIAL REGULATIONS COUNTIES

§ 111.58.  Susquehanna County.

   (a)  Cotrell Lake. The operation of boats powered by internal combustion motors is prohibited.

   (b)  East Lake. The operation of boats powered by internal combustion motors is prohibited.

   (c)  Lakeside Pond. The use of motors in excess of 10 horsepower is prohibited.

   (d)  Laurel Lake.

   (1)  Internal combustion motors prohibited. After April 1, 1997, the operation of boats powered by internal combustion motors is prohibited except as otherwise provided in this subsection.

   (2)  Operation of boats powered by motors of up to 60 horsepower. Resident property owners at Laurel Lake are permitted to operate boats powered by motors of up to 60 horsepower. It is unlawful for a person, other than a resident property owner or a member of the property owner's immediate family, to operate a boat powered by an internal combustion motor on Laurel Lake. It is unlawful for a person, including a resident property owner and members of the immediate family, to operate a boat powered by a motor rated in excess of 60 horsepower.

   (3)  Restrictions on operation of boats powered by internal combustion motors. Operation of boats powered by internal combustion motors is subject to the following restrictions:

   (i)  Ski devices. No more than one water ski device with a maximum of one skier may be towed by a boat.

   (ii)   Upper Lake. Boat speed is limited to slow, minimum height swell speed except that, during the period from noon until 6 p.m., no more than two boats powered by internal combustion motors may, at any one time, operate at speeds greater than slow, minimum height swell speed in the marked boat operating zone. Boats operating in the marked zone shall circle in a counter-clockwise direction and shall be subject to the restrictions in this subsection and the code and this subpart. It is unlawful to water ski or to operate a boat at greater than slow, minimum height swell speed at any location on the upper lake from 6 p.m. until noon of the following day.

   (iii)   Lower Lake. It is unlawful to water ski or to operate a boat at greater than slow, minimum height swell speed at any time at any location on the lower lake.

   (iv)  Personal watercraft. The operation of personal watercraft is prohibited.

   (4)  Restrictions on competing uses of marked boat operating zone. Boats powered by internal combustion motors operating at authorized speeds greater than slow, minimum height swell speed in the marked boat operating zone shall have priority during the time periods when the operation is authorized under paragraph (3)(ii). It is unlawful to operate or stop a boat in the marked boat operating zone in a manner that interferes with authorized operation of internal combustion powered motorboats in the zone.

   (e)  Little Elk Lake. The operation of boats powered by internal combustion motors is prohibited.

   (f)  Quaker Lake. The use of motors in excess of 7.5 horsepower is prohibited.

   (g)  Stump Pond. The operation of boats powered by internal combustion motors is prohibited.

   (h)  Tripp Lake. The operation of boats powered by internal combustion motors is prohibited.

   (i)  Upper Lake, New Milford Township. Motors are prohibited.

[Pa.B. Doc. No. 97-590. Filed for public inspection April 18, 1997, 9:00 a.m.]

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