PROPOSED RULEMAKING
[58 PA. CODE CHS. 61, 63, 65 and 67]
Fishing
[27 Pa.B. 4450] The Fish and Boat Commission (Commission) proposes to amend Chapters 61, 63, 65 and 69. The Commission is publishing these proposed amendments as a notice of proposed rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The proposed amendments concern with fishing.
A. Effective date
These proposed amendments will, if approved on final rulemaking, go into effect on January 1, 1998, or upon publication of an order adopting the amendments, whichever comes later.
B. Contact person
For further information on the proposed changes, contact Laurie E. Shepler, Assistant Counsel, (717) 657-4546, P. O. Box 67000, Harrisburg, PA 17106-7000. This proposal is available electronically through the Commission's Web site (http://www.fish.state.pa.us).
C. Statutory authority
These proposed amendments are published under the statutory authority of section 2102 of the code (relating to rules and regulations).
D. Purpose and background
The proposed amendments are designed to update, modify and improve Commission regulations relating to fishing. The specific purpose for the various proposed amendments is described in more detail under the summary of proposal.
E. Summary of proposal
1) Sections 61.1, 61.4 and 61.7 (relating to Commonwealth inland waters; the Conowingo Reservoir; and Susquehanna River and tributaries). Regulations for the Susquehanna River (footnote in §§ 61.1 and 61.7) and the Conowingo Reservoir (§ 61.4) prohibit the harvest of American shad; this was done primarily to protect adult shad that were being trapped and transported up river for stock rebuilding purposes. River herring and hickory shad are other anadromous fish species for which restoration is expected within the Susquehanna River Basin through the operation of the fish passage facilities at the dams. Harvest of hickory shad is prohibited in the Conowingo Reservoir where the Commission follows the regulatory lead of the state of Maryland. Prohibiting harvest of American shad, hickory shad and both species of river herring will remain important during the initial phases of fish passage at the dams. It is appropriate that these fish stocks be protected from harvest during the population building phases in the entire Susquehanna River Basin.
Amending § 61.7 and footnote #4 to § 61.1 to make it illegal to take, catch or kill hickory shad and alewife and blueback herring (collectively known as river herring) will provide the appropriate protection. Amending § 61.4 to make it illegal to take, catch or kill alewife and blueback herring (collectively known as river herring) will add protection to these species in addition to the protection already provided to American shad and hickory shad in the Conowingo Reservoir. At its meeting, the Commission approved the publication of a notice of proposed rulemaking containing these changes with the clarification that landlocked alewife taken from inland ponds, lakes or reservoirs (such as Lake Raystown), collected by legal means and measuring less than 8 inches in length may be harvested for use as baitfish.
2) Sections 61.1, 61.2, 63.11 and 63.12 (relating to Commonwealth inland waters; Delaware River and River Estuary; eel chutes; and eelpots and fyke nets). Management of American eels is a subject of much discussion among East Coast jurisdictions. According to the American Eel and Horseshoe Crab Public Information Document prepared by Atlantic States Marine Fisheries Commission (ASMFC) American Eel Plan Development Team, ''status of American eel populations along the Atlantic seaboard is poorly understood. At the same time, growing exploitation of American eel has raised concern by various fisheries management interests. Domestic and overseas markets utilize nearly all life history stages of eels and demand for the species continues to be greater than the fishery can supply.'' The economic value of eels, particularly baby eels or elvers (also glass eels), has been referred to as the next most lucrative commodity next to illegal drugs. Values of several hundred dollars per pound of elvers are not uncommon, particularly when destined for aquaculture use in Asia or Europe. It is common knowledge that major suppliers follow the migration and obtain elvers in various jurisdictions through permitted or illegal, or both, fisheries. The lack of uniformity, particularly length limits, complicates and hinders action by law enforcement personnel.
The Commonwealth, by virtue of having only one or two commercial fisheries for eels, is relatively well off compared to most other jurisdictions. Even so, the Commission's regulations merit some attention in light of problems with American eel fisheries. Under the code, an applicant can be issued an eel chute (weir) license for $25 for reaches of the North and West Branches of the Susquehanna River, the Juniata River downstream of Mount Union and in the Delaware River. In recent years, undoubtedly due to a scarcity of eels in the Susquehanna drainage, no permits have been issued. Two were issued for the Delaware River in 1996 with only one involving active fishing and reporting a catch slightly over 400 pounds. Much of the Delaware River, especially that involving the Delaware Water Gap National Recreation Area, is now closed to commercial take of any species, including eels. The authority requiring issuance of eel chute licenses is statutory, and the Commission has no explicit statutory authority to refuse to issue the licenses to qualified licensees. However, the Commission does have explicit statutory authority to prohibit the sale of eels taken from Commonwealth and boundary waters. Accordingly, staff recommended that § 63.11(13) be amended so that eels caught lawfully under this section may not be sold or offered for sale. In addition, this section should be amended to add a new subsection providing that eels taken with eel chutes shall be subject to the same size and creel limits as eels taken with hook and line.
It is not known how many anglers take eels with eelpots as currently permitted under § 63.12. It is speculated that few if any take advantage of this practice, which does not require any special permit or license. Staff further suggested that eelpots be considered an illegal device having no place in today's fisheries management plan for American eel.
Use of fyke nets as authorized by § 63.12 requires a $10 permit and may occur only in the Delaware River common to this Commonwealth and New Jersey. In 1996, staff initiated a moratorium on issuing fyke net permits in anticipation of possible changes brought about by an ASMFC coastwide eel management plan. This was intentionally done to minimize inconvenience to anglers who geared up to harvest and sell elvers only to lose that opportunity a year or so later. One permit was issued before word on the moratorium became known to staff. It is not known whether or not that permit was utilized. Based on social conflicts involving fyke netters in other jurisdictions, uncertainty of American eel stocks and the philosophical difference of a commercial elver fishery contrary to recreational angling throughout the rest of this Commonwealth, except Lake Erie, staff suggested that the fyke net program be retired.
American eels, both adult and young, still play a role in recreational angling in this Commonwealth. It is the intent of staff to continue to permit the taking of eels as bait and as conventional sport harvest (if taken on hook and line). In doing so, a 6-inch minimum length limit (with a 50 fish possession limit) needs to be considered to facilitate law enforcement relative to the harvest and trafficking of elvers through Commonwealth markets and to be consistent with regulations in neighboring jurisdictions. This means an angler taking elvers with a seine, dip net or other legal device will have a 6-inch minimum and an 8-inch maximum. The 8-inch maximum applies to eels, chubs, suckers, lampreys and fallfish when taken as baitfish. Otherwise, those over 8-inches in length can be taken only by hook and line. The Commission approved the publication of a notice of proposed rulemaking consistent with staff's recommendations.
3) Sections 63.6--63.8 (relating to authorized devices for game fish, baitfish and fishbait; exceptions to limitations on devices; and long bows, spears and gigs). A review of these regulations revealed a need to clarify or make minor corrections to insure that anglers are able to understand them and that the original intent is contained therein. The proposed changes do not alter or change the regulations in any significant manner.
4) Section 65.24 (relating to miscellaneous special regulations). Management of Harveys Lake, a 658-acre natural lake in Luzerne County, has been dynamic and at times controversial in the last 10 years or so. In the mid-1980's, stocking was terminated as the lake exceeded the 200-acre maximum for the adult trout program. Fingerlings stocked on a put-grow-and-take basis were used in recognition of suitable thermal and chemical traits characteristic of a two-story lake. Evaluation of fingerling stockings in comparison to larger size trout indicated very poor survival during the first and perhaps most critical year in the lake. Losses over the dam and predation by chain pickerel, perhaps walleye and resident waterfowl were thought to be limiting factors in the use of fingerlings. About the same time, results from use and harvest studies across the State on trout-stocked waters were being used to revise stocking rates for better use of hatchery trout and to provide more opportunity for trout angling. Staff recognized the potential to provide year long opportunity for trout angling on a few select two-story lakes/reservoirs through the stocking of adult trout at a very light stocking rate, particularly when use of fingerlings did not achieve success. Thus, adult trout stocking was phased back into the program for Harveys Lake. Brown trout have been emphasized given their greater potential to achieve a larger size in a two-story lake with alewife forage.
Staff would now like to advance the management of Harveys Lake, bearing in mind several key aspects, including: 1) keeping the lake open as long as possible for warmwater/coolwater species angling; 2) providing more trout fishing opportunity by stocking adult trout prior to opening day, during the spring inseason period, and in the fall; 3) stocking a mix of rainbow and brown trout in recognizing differences in catchability and the idea that some, primarily brown trout, will provide the basis for a trophy fishery; and 4) using special regulations to manage for a trophy fishery without eliminating opportunity for the typical trout angler to catch and keep a few trout from recent stockings. New regulations are envisioned to manage for a trophy fishery while still permitting anglers to enjoy recently stocked trout center on a reduced daily creel, an elevated minimum length limit and a short period of no-fishing. For a program based on the stocking of hatchery trout, a three trout daily creel will be used in an attempt to prolong the fishery. While the Statewide 7-inch length limit will still apply, only one of the three fish daily limit may exceed 18 inches. This is intended to emphasize the trophy potential of trout stocked in Harveys Lake as it takes brown trout on the average two seasons before the 18 inch length is attained. The no-fishing season of April 1 through 8 a.m. of the opening day of regular trout season is like that for waters in the late winter-extended trout fishing program. It is staff's intent to maximize the number of days Harveys Lake is open for angling but have a very short closure so preseason stocking for the mid-April opener can occur.
The general approach has been aired at several meetings, including meetings of the Luzerne County Federation of Sportsmen and the Harveys Lake Protection Association. Overall reaction has been favorable. The Commission approved the publication of a notice of proposed rulemaking containing these changes.
5) Section 69.12 (relating to seasons, sizes and creel limits--Lake Erie). Fisheries Management staff have noted changes in: (1) water quality; (2) aquatic macrophyte (vegetation) density; and (3) fish species composition in Presque Isle Bay. Generally, improvement in water quality has been noted. Aquatic macrophyte density has increased undoubtedly as a consequence of zebra mussel colonization and related increases in water clarity. Changes in fish species composition can be expected to exhibit modes fluctuations as a consequence of environmental factors. However, substantial increases in rough-fish, primarily quillback, have been noted in recent surveys. Recent surveys also have found evidence of natural reproduction of muskellunge.
Increases in Great Lakes muskellunge stocks in Lake Erie in the vicinity of Buffalo, New York, have been documented. Additionally, recent studies by New York biologists suggest that Great Lakes muskellunge utilize very specific spawning habitats and young muskellunge associate themselves with very specific types of aquatic vegetation. Cursory survey information suggests that these habitats and aquatic plants are available in Presque Isle Bay. Given adequate habitat (spawning and nursery) and availability of adequate forage fish, staff are anxious to foster recovery of the Great Lakes strain muskellunge by protecting larger and mature size classes. Great Lakes muskellunge exhibit maturity schedules where all or most females attain sexual maturity by age 7 at approximately 39 inches. Given this schedule, staff recommended to the Commission that a minimum size limit of 40 inches be established with a one fish daily creel limit. Restrictive regulations and perhaps supplemental stocking of Great Lakes strain muskellunge from out-of-State sources will be used to restore wild muskellunge populations to Presque Isle Bay with a multiyear evaluation. The Commission approved the publication of a notice of proposed rulemaking consistent with staff's recommendations.
6) Sections 69.31 and 69.33 (relating to seasons; and use of trap nets). A notice of proposed rulemaking containing proposed changes to §§ 69.21--69.39 was published at 26 Pa.B. 5982 (December 14, 1996). Staff also directly solicited comments from all licensed commercial fishermen on Lake Erie. Although the Commission did not receive any comments during the public comment period, it received one comment shortly after the comment period ended. The commentator offered many suggestions worthy of consideration. However, the extensive changes that he suggested, while within the scope of the proposed rulemaking, required further staff review and will profit from public input. Accordingly, the Commission adopted the regulations as proposed at its January 1997 meeting and agreed to consider additional changes as proposed rulemaking at its spring 1997 meeting.
During a technical staff review in March 1997, staff considered the commentator's requests. Staff found no compelling reason to regulate the time of year when walleye are harvested commercially; therefore, staff recommended that when the total allowable harvest is attained, the season is closed. Staff also acknowledged that trap nets fish more easily and efficiently in shallow water thereby improving the expectation that the total allowable catch can be attained. The distance limits recommended by staff are intended to preserve navigation.
As a result of the technical review, staff recommended to the Commission that the regulations be amended. The Commission, at its spring 1997 meeting, approved the publication of a notice of proposed rulemaking consistent with staff's recommendations.
F. Fiscal Impact
The proposed amendments will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed amendments will impose no new costs on the private sector or the general public.
G. Paperwork
The proposed amendments will not increase paperwork and will create no new paperwork requirements.
H. Public Comments
Interested persons are invited to submit written comments, objections or suggestions about the proposed amendments to the Executive Director, Fish and Boat Commission, P. O. Box 67000, Harrisburg, PA 17106-7000, within 30 days of publication of this notice in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.
Comments also may be submitted electronically at ''regulations@fish.state.pa.us.'' A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
PETER A. COLANGELO,
Executive Director(Editor's Note: A proposal to amend § 61.7 remains outstanding at 27 Pa.B. 1653 (April 5, 1997). A proposal to amend § 65.24 remains outstanding at 27 Pa.B. 1468 (March 22, 1997).)
Fiscal Note: 48A-68. 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 * * * * * * * * * * * * * * * * * * * * AMERICAN EEL Open year-round 8 inches 50 * * * * * * * * * * * * * * * * * * * * SUNFISH, YELLOW PERCH, CRAPPIES, CATFISH, ROCK BASS, SUCKERS, [EELS], CARP, WHITE BASS Open year-round No minimum 50 (combined species) AMERICAN EEL (as baitfish) Open year-round 6 inches to 8 inches 50 * * * * * * * * * * * * * * * * * * * * **** Note: Unlawful to take, catch or kill American Shad, hickory shad and alewife and blueback herring (collectively known as river herring) in Susquehanna River and its tributaries. See §§ 61.4 and 61.7.
§ 61.2. Delaware River and River Estuary.
* * * * * (d) The following seasons, sizes and creel limits apply to the Delaware River and to Delaware River tributaries from the mouths of the tributaries upstream to the limit of the tidal influence:
SPECIES SEASONS MINIMUM SIZE DAILY LIMIT * * * * * * * * * * * * * * * * * * * * AMERICAN EEL Open year-round 8 inches 50 AMERICAN EEL (as baitfish) Open year-round 6 inches to 8 inches 50 * * * * * * * * * * * * * * * * * * * * § 61.4. Conowingo Reservoir.
* * * * * (d) The following seasons, sizes and creel limits apply to the Conowingo Reservoir, which includes the Susquehanna River from the Maryland State Line upstream to Holtwood Dam:
SPECIES SEASONS MINIMUM SIZE DAILY LIMIT * * * * * * * * * * * * * * * * * * * * AMERICAN and HICKORY SHAD and ALEWIFE and BLUEBACK HERRING (collectively known as river herring) Closed (No open season) Closed 0 * * * * * * * * * * * * * * * * * * * * § 61.7. Susquehanna River and tributaries.
* * * * * (d) The following seasons, sizes and creel limits apply to the Susquehanna River and its tributaries including the Juniata River, the West Branch, ''North Branch'' and other tributaries within the Susquehanna River Basin, except the Conowingo Reservoir--see § 61.4 (relating to Conowingo Reservoir):
SPECIES SEASONS MINIMUM SIZE DAILY LIMIT AMERICAN and HICKORY SHAD and ALEWIFE and BLUEBACK HERRING (collectively known as river herring) * Closed year-round Closed 0 * * * * * * * * * * * * * * * * * * * * *Note: Landlocked alewife taken from inland ponds, lakes or reservoirs that are collected by legal means and measure less than 8 inches in length may be harvested for use as baitfish.
CHAPTER 63. GENERAL FISHING REGULATIONS § 63.6. Authorized devices for game fish, baitfish and fishbait.
* * * * * (d) It is unlawful to use more than two lines at any time when fishing for game fish, baitfish or both.
§ 63.7. Exceptions to limitations on devices.
The limitations on fishing devices contained in this chapter do not:
* * * * * (3) Limit the means or devices by which fish may be taken under special permits issued under Chapter 29 of the code (relating to special licenses and permits), except trout/salmon permits.
* * * * * § 63.8. Long bows, spears and gigs.
* * * * * (b) Delaware River. The following provisions apply to use of long bows, including compound, spears and gigs on the Delaware River:
(1) In addition to the species in subsection (a), herring, except shad, and catfish may be taken [using long bows and arrow, spears or gigs].
(2) It is unlawful to use long bows and arrow, including compound, spears or gigs to take fish within 275 yards of an eel weir.
* * * * * § 63.11. Eel chutes.
It is unlawful to operate an eel chute except in compliance with the following terms and conditions:
* * * * * (13) The Commission hereby determines under section 3311 of the code (relating to sale of certain fish prohibited) that eels caught lawfully under this section may not be sold or offered for sale.
(14) Eels taken with eel chutes shall be subject to the same size and creel limits as eels taken with hook and line.
§ 63.12. [Eelpots and fyke nets] (Reserved).
[(a) Unlawful. It is unlawful to take, catch or kill fish by means of eelpots or fyke nets except in compliance with the terms and conditions of this section.
(b) Location. Eelpots and fyke nets shall be lawful for use only in the Delaware River between this Commonwealth and the State of New Jersey.
(c) Seasons. Eelpots and fyke nets may be used only during the period July 31--May 31 of each year. The use of these devices is prohibited during the month of June.
(d) Species. Eelpots and fyke nets may be used only to catch carp, catfish, eel and suckers. It is unlawful to take, catch or kill other species of fish by means of these devices. Other species which may be caught in these devices shall be immediately returned unharmed to the waters from which they were taken.
(e) Size. It is unlawful to use or possess an eelpot or fyke net having an entrance or more than 6 inches in diameter or an outside diameter of more than 30 inches. It is unlawful to use or possess any eelpot or fyke net that includes wings or rods.
(f) The Commission hereby determines, under section 3311 of the code (relating to sale of certain fish prohibited), that eels caught lawfully under this section may be sold or offered for sale.]
CHAPTER 65. SPECIAL FISHING REGULATIONS § 65.24. Miscellaneous special regulations.
The following waters are subject to the following miscellaneous special regulations:
County Name of Water Special Regulations * * * * * * * * * * * * * * * Luzerne Harveys Lake During the period from the opening day of trout season through midnight March 31, the daily creel limit for trout (combined species) is 3, one of which may exceed 18 inches in length.
The season is closed from April 1 through 8 a.m. of the opening day of regular trout season.
Warmwater/coolwater species -- Inland regulations apply.* * * * * * * * * * * * * * *
CHAPTER 69. FISHING IN LAKE ERIE AND BOUNDARY LAKES
Subchapter A. GENERAL PROVISIONS § 69.12. Seasons, sizes and creel limits--Lake Erie.
* * * * * (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
NorthernInland seasons apply: See § 61.1
[30] 40 inches
24 inches[2] (combined species)
2* * * * * * * * * * * * * * * * * * * *
Subchapter D. COMMERCIAL FISHING, SEASONS AND NETS § 69.31. Seasons.
* * * * * (b) [The commercial fishing season for walleye is the period after September 19 and before December 1 or a lesser period that the Executive Director may determine is appropriate to provide for the protection and management of these fish. Prior to the opening of the commercial walleye season on September 20, the Executive Director will announce the total allowable commercial catch of walleye for that season. The total allowable catch will be equal to the reported commercial catch of walleye in 1980 or a lesser figure as the Executive Director determines appropriate to provide for the protection and management of walleye in the Pennsylvania portion of Lake Erie. The Executive Director will declare the walleye season to be closed when he determines that the total allowable catch may be attained. It is unlawful for a person fishing under a commercial fishing license or for commercial purposes to attempt to catch walleye except during the commercial walleye season established under this subsection. Walleye accidentally caught out of season shall be returned to the waters from which they were taken regardless of condition. These walleye may not be sold. These walleye shall be reported within 2 business days to the Commission. Commercial operations are not permitted to target walleye as a species for harvest prior to September 20.] The commercial fishing season for walleye is January 1 until the date established by the Executive Director as marking the probable attainment of the total allowable catch for walleye for that year. The total allowable catch for walleye for any year will be determined by the Executive Director and announced annually on or before March 1. After the announcement, the Executive Director may, from time to time, revise the total allowable catch for that year if he determines that conditions so warrant. The Executive Director or a designee will monitor monthly, weekly and daily reports of catch of walleye and will declare the season to be closed on a date the Director determines will probably mark attainment of the total allowable catch. It is unlawful for a person fishing under a commercial fishing license or with a device subject to licensing under section 2902 of the code (relating to net permits) to take, catch or attempt to catch walleye except during the walleye season established under this subsection. Walleye accidentally caught out of season shall be immediately returned to the waters from which it was taken regardless of its condition and reported within 2 business days to the Commission at the address where commercial catch reports are filed.
* * * * * § 69.33. Use of trap nets.
* * * * * (b) Species. A commercial trap net licensee may not possess or sell a fish except in compliance with the following size limits and seasons. The following size limits apply to commercial trap net licensees except that 5% of each licensee's daily catch by [weight] number per species may be undersized fish that may be lawfully sold:
Species Size Limit Season Yellow perch (Perca flavescens) 8 1/2 inches [March 1 until total allowable catch is taken] No closed season until the total allowable catch is taken Walleye (Stizostedion vitreum) 15 inches [September 20 until December 1 or attainment of total allowable catch, whichever comes first] No closed season until the total allowable catch is taken * * * * * (d) Limitations on use. [From March 1 through November 30, no part of a trap net may be set within 1.5 miles of the Lake Erie shoreline. In addition, after June 1 and before November 30, no part of a trap net may be set closer to shore than the line from a point on the Ohio/Pennsylvania border 42°:02.5"N, 80°:31.2"W; thence 063°T to 42°13.0"N, 80°:00.0"W; thence 058°T to 42°:19.1"N, 70°:45.7"W.] From January 1 through June 15, no part of a trap net may be set within 0.5 miles of the Lake Erie shoreline, except between longitudes 80°00" and 80°10" where no part of a trap net may be set within 1.5 miles of the Lake Erie shoreline. From June 16 through December 31, no part of a trap net may be set within 1.5 miles of the Lake Erie shoreline.
[Pa.B. Doc. No. 97-1396. Filed for public inspection August 29, 1997, 9:00 a.m.]
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