RULES AND REGULATIONS
[58 PA. CODE CHS. 61 AND 69]
Seasons, Sizes and Creel Limits; Fishing in Lake Erie and Boundary Lakes
[31 Pa.B. 3205] The Fish and Boat Commission (Commission) by this orders amends Chapters 61 and 69 (relating to seasons, sizes and creel limits; and fishing in Lake Erie and boundary lakes). The Commission is publishing these amendments under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The amendments relate to fishing.
A. Effective Date
The amendments will go into effect on January 1, 2002.
B. Contact Person
For further information on the amendments, contact Laurie E. Shepler, Assistant Counsel, (717) 705-7815, P. O. Box 67000, Harrisburg, PA 17106-7000. This final rulemaking is available electronically on the Commission's website (http://www.fish.state.pa.us).
C. Statutory Authority
The amendments to §§ 61.2, 61.3 and 69.12 (relating to Delaware River and River Estuary; Pymatuning Reservoir; and seasons, sizes and creel limits--Lake Erie) are published under the statutory authority of section 2102 of the code (relating to rules and regulations). The amendment to § 69.33 (relating to use of trap nets) is published under the statutory authority 2903 of the code (relating to boats and net licenses for boundary lakes).
D. Purpose and Background
The amendments are designed to update, modify and improve the Commission's regulations pertaining to fishing. The specific purpose of the amendments is described in more detail under the summary of changes.
E. Summary of Changes
(1) Section 61.2 (relating to Delaware River and River Estuary). Management of Delaware River and Estuary striped bass is complicated given that this water borders with the states of New York and New Jersey. Also, the Atlantic States Marine Fisheries Commission (ASMFC) is involved because the striped bass stock is a migratory one. Federal mandates place migratory East Coast striped bass under the purview of the ASMFC having a membership of all Atlantic Coast states as well as the District of Columbia and the Potomac River Fisheries Commission. The existing ASMFC striped bass management plan requires jurisdictions to adhere to a set standard of minimum length and creel limits. Harvest ceilings apply in some fisheries. However, jurisdictions are able to deviate from standard regulations if that the alternative seasons, length limits, creel limits, gear restrictions, and the like, provide a conservation equivalency. State management plans undergo review by the ASMFC Striped Bass Technical Committee before being considered by the Striped Bass Management Board, both of which include representation from the Commonwealth.
The recovery of East Coast striped bass stocks has permitted the liberalization of regulations so anglers, both recreational and commercial, can once again enjoy fishing over an abundance of striped bass. Various stock abundance and harvest indices as well as actual harvest counts/estimates are used to determine stock status and to set the tone for regulations for each fishing season. Unfortunately, the process often results in jurisdictions not being able to implement regulatory changes in a timely fashion given the timing of Striped Bass Board action and rulemaking processes in the jurisdictions.
Since the early 1980s when ASMFC striped bass management action began in earnest to rebuild seriously depleted stocks, the Commonwealth has worked in concert with neighboring jurisdictions regarding regulations for Delaware River and Estuary striped bass. Previously, Commission regulations provided for a 28 inch minimum length limit, a 2 fish daily possession limit and a year 'round harvest season except for a closed season from January through February and April through May from the Pennsylvania/Delaware state line upstream to Trenton Falls. Delaware and New Jersey, as part of fine-tuning their statewide striped bass regulations including marine fisheries, are making or recently have made changes. New Jersey, in particular, is considering regulations that provide for one fish that is in the 24 to less than 28-inch size range and one fish that is 28 inches and over. In fact, this package applied to the Delaware River from Trenton Falls downstream during much of the 2000 season. The Commission believes that it is desirable to have its regulations be consistent with the New Jersey package, particularly if that state applies the regulations to the freshwater portion of the Delaware River. Accordingly, the Commission has amended § 61.2 to implement a new size and daily creel limit for the Delaware River and Estuary striped bass. Under the amended regulation, one striped bass may be in the 24 to less than 28-inch range, and one striped bass may be 28 inches in length or greater.
(2) Section 61.3 (relating to Pymatuning Reservoir). Pymatuning Reservoir is a 14,000-plus acre flood control and augmentation impoundment in Crawford County, Pennsylvania and Ashtabula County, Ohio. The fishery is jointly managed by the Ohio Department of Natural Resources (Ohio DNR) and the Commission. Representatives from the two agencies meet annually to discuss management issues and plans. In recent years, Ohio DNR changed statewide bass regulations as a result of ongoing studies. The daily creel limit component of the statewide regulations was reduced to five. The Commission was approached about reducing the daily creel limit at Pymatuning Reservoir to five to be consistent with Ohio. Previously, a 12 inch minimum length limit and an eight bass daily limit applied to black bass at Pymatuning, while the statewide limit in this Commonwealth is six.
The Commission has reduced the creel limit in the Pymatuning to five fish to be consistent with statewide regulations in Ohio. The Commission believes that it is unlikely that the three fish reduction will have any impact on the bass population or anglers seeking bass. Creel surveys conducted jointly by both agencies consistently have indicated less than 5% of all anglers were fishing for black bass. Since regulations in Ohio run from March through February while those in this Commonwealth are on a calendar year basis, the regulations will not be congruent for 2 months during the first year of implementation. The Commission, however, believes that this will not be a problem.
(3) Sections 69.12, 69.31 and 69.33 (relating to seasons, sizes and creel limits--Lake Erie; seasons; and use of trap nets). Prior sport fish regulations concerning the harvest of walleye included a daily limit of 6 fish and a 15-inch minimum size limit. The commercial trap net fishery, on the other hand, was regulated by a 15-inch minimum size and an annual total allowable harvest (in pounds) set at the onset of each fishing year. There was no closed season for the sport fishery.
Since the mid 1980's, there has been an inexorable decline in walleye abundance throughout Lake Erie. Walleye presently are only 14% of their 1993 population size. In Commonwealth waters, a similar, continuous trend has been observed. Since 1988, walleye numbers have declined over 80%. Accordingly, the annual estimated number of walleye harvested in this Commonwealth has declined from nearly 250,000 during the late 1980's to 77,000 in year 2000. Explanations for these population decreases are: (1) decreases in overall lake productivity; (2) weaker recruitment patterns and smaller year classes; and (3) gradual increases in exploitation (fishing) rates.
To reverse the downward trend in walleye abundance, it is necessary to increase walleye survival lake-wide and that is expected to increase walleye reproductive potential. While this Commonwealth is not a major source of increased fishing rates, this Commonwealth needs to do its part to insure the walleye's reproductive potential. In this Commonwealth, this can be achieved by restricting fishing during the spawning period. A closed season from mid-March to early May is expected to reserve up to 20% of the potential commercial walleye catch and 1% of the angler catch for conservation purposes as well as limiting the potential to target future increases in early spring walleye spawning populations. This will affect both commercial and recreational fisheries where they occur on Lake Erie, Presque Isle Bay and peninsular waters. Accordingly, the Commission has amended §§ 69.12, 69.31 and 69.33 to include a Lake Erie closed season for walleye from March 15 (12:01) to the first Friday in May (12 midnight).
F. Paperwork
The amendments 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 will impose no new costs on the private sector or the general public.
H. Public Involvement
A notice of proposed rulemaking was published at 31 Pa.B. 1373 (March 10, 2001). Regarding the proposed changes to §§ 61.2 and 61.3, the Commission did not receive any public comments. The Commission received two comments concerning the proposed Lake Erie closed season for walleye. One of the comments asked several questions about the proposal; the other expressed concern that the Commonwealth will make the same ''mistake'' that New York made when setting its closed season. Copies of all public comments were provided to the Commissioners. In addition, the Commission held a public information meeting on March 19, 2001, in Erie. Comments offered at the meeting were generally supportive of the proposed change.
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 in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided, and all 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 61 and 69, are amended by amending §§ 61.2, 61.3, 69.12, 69.31 and 69.33 to read as set forth in 31 Pa.B. 1373.
(b) The Executive Director will submit this order and 31 Pa.B. 1373 to the Office of Attorney General for approval as to legality as required by law.
(c) The Executive Director shall certify this order and 31 Pa.B. 1373 and deposit the same with the Legislative Reference Bureau as required by law.
(d) This order shall take effect January 1, 2002.
PETER A. COLANGELO,
Executive DirectorFiscal Note: Fiscal Note 48A-115 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 01-1044. Filed for public inspection June 15, 2001, 9:00 a.m.]
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