PROPOSED RULEMAKING

FISH AND BOAT COMMISSION

[58 PA. CODE CHS. 61 AND 69]

Seasons, Sizes and Creel Limits; Fishing in Lake Erie and Boundary Lakes

[31 Pa.B. 1373]

   The Fish and Boat Commission (Commission) proposes to amend 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 as a notice of proposed rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The proposed amendments relate to fishing.

A.  Effective Date

   The proposed amendments, if approved on final rulemaking, will go into effect on January 1, 2002, or upon publication of an order adopting the amendments in the Pennsylvania Bulletin, whichever occurs later.

B.  Contact Person

   For further information on the proposed amendments, contact Laurie E. Shepler, Assistant Counsel, (717) 705-7815, P. O. Box 67000, Harrisburg, PA 17106-7000. This proposal is available electronically through the Commission's website (http://www.fish.state.pa.us).

C.  Statutory Authority

   The proposed 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 proposed amendment to § 69.33 (relating to use of trap nets) is published under the statutory authority of section 2903 of the code (relating to boats and net licenses for boundary lakes).

D.  Purpose and Background

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

E.  Summary of Proposal

   (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 fish. 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 provided 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. Currently, Commission regulations provide 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 would be 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 proposes amending § 61.2 to implement a new size and daily creel limit for Delaware River and Estuary striped bass. The Commission proposes that 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 has changed Statewide bass regulations as a result of ongoing studies. The daily creel limit component of the Statewide regulations has been reduced to five. The Commission has been approached about reducing the daily creel limit at Pymatuning Reservoir to five to be consistent with Ohio. Currently, a 12-inch minimum length limit and an eight bass daily limit applies to black bass at Pymatuning, while the Statewide limit in this Commonwealth is six.

   The Commission proposes reducing 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). Current sport fish regulations concerning the harvest of walleye include a daily limit of six fish and a 15-inch minimum size limit. The commercial trap net fishery, on the other hand, is regulated by a 15-inch minimum size and an annual total allowable harvest (in pounds) set at the onset of each fishing year. There is 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 will be 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, we need to do our 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 proposes to amend §§ 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 (12:00 midnight).

F.  Paperwork

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

G.  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.

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 after publication of this notice in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.

   Comments also may be submitted electronically at ''ra-pfbcregs@state.pa.us.'' A subject heading of the proposal and a return name and address must be included in each transmission. In addition, all electronic comments must be contained in the text of the transmission, not in an attachment. 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

   Fiscal Note: 48A-115. 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

§ 61.2.  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 and the Lehigh River from its mouth upstream to the first dam in Easton, Pennsylvania:

Species	Seasons	Minimum Size	Daily Limit
*      *      *      *      *
STRIPED BASS and HYBRID STRIPED BASS	From Pennsylvania line upstream to Trenton Falls: March 1 until March 31, and June 1 until December 31. From Trenton Falls upstream: open year-round	[28 inches]   24 inches to less than 28 inches	[2]     1
		28 inches or greater	1
*      *      *      *      *

§ 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:

	MINIMUM	DAILY CREEL
SPECIES	SIZE	LIMIT
*      *      *      *      *
BASS	12 inches	[8] 5
*      *      *      *      *

CHAPTER 69.  FISHING IN LAKE ERIE AND BOUNDARY LAKES

§ 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
*      *      *      *      *
WALLEYE*	[Open year-round] January 1 to midnight March 15 and 12:01 a.m. the first Saturday in May to December 31	15 inches	6
*      *      *      *      *

 

§ 69.31.  Seasons.

*      *      *      *      *

   (b) The commercial fishing season for walleye is January 1 [until] to midnight March 15 and 12:01 a.m. the first Saturday in May to December 31. This season will close on 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 the 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 number per species may be undersized fish that may be lawfully sold:

Species	Size Limit	Season
*      *      *      *      *
Walleye (Stizostedion vitreum)	15 inches	[No closed season until the total allowable catch is taken] January 1 to midnight March 15 and 12:01 a.m. the first Saturday in May to December 31. This season will close when the total allowable catch for walleye is taken.
*      *      *      *      *

[Pa.B. Doc. No. 01-404. Filed for public inspection March 9, 2001, 9:00 a.m.]

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