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PA Bulletin, Doc. No. 14-81




[ 58 PA. CODE CH. 63 ]

Fishing; General Fishing Regulations

[44 Pa.B. 250]
[Saturday, January 11, 2014]

 The Fish and Boat Commission (Commission) amends Chapter 63 (relating to general fishing regulations). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code).

A. Effective Date

 The final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.

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

C. Statutory Authority

 The amendment to § 63.50 (relating to importation of tautog) is published under the statutory authority of section 2102(c) of the code (relating to rules and regulations). The addition of § 63.56 (relating to replacement costs for fish killed) is published under the statutory authority of section 923(c.1) of the code (relating to classification of offenses and penalties).

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 amendments is described in more detail under the summary of changes.

E. Summary of Changes

 (1) At its July 2007 meeting, the Commission approved a 14-inch minimum size limit on tautog (Tautoga onitis) imported into this Commonwealth. Tautog is a marine fish common on hard bottom from Cape Cod, Massachusetts to Delaware. The Commission promulgated the regulation in 2007 because tautog were being harvested illegally on the Atlantic Coast and being sold in the live fish markets in Philadelphia. The New Jersey Division of Fish and Wildlife (NJDFW) asked the Commission to implement a 14-inch minimum size limit on tautog that are imported into the Commonwealth to address the black market sale of sublegal fish.

 Recently, NJDFW raised its size limit to 15 inches. Accordingly, NJDFW requested that the Commission raise its importation size limit to 15 inches. Coastwide, commercial and recreational size limits are currently either 15 or 16 inches. By raising the Commonwealth's importation size limit to 15 inches rather than 16 inches, the Commission maintains consistency with New Jersey, its closest neighbor to the Atlantic Ocean. A size limit of 16 inches would render it illegal for tautog legally caught in New Jersey with a 15-inch size limit to be imported to this Commonwealth. The Commission therefore amends § 63.50 to read as set forth in the proposed rulemaking published at 43 Pa.B. 3235 (June 15, 2013).

 (2) The act of October 24, 2012 (P. L. 1323, No. 167) amended section 923 of the code to add subsection (c.1). This subsection provides that in addition to other penalties in section 923 of the code, a person convicted of or acknowledging guilt of violating section 2109 or 2110 of the code (relating to serious unlawful take; and taking or possessing by illegal methods) will be assessed the costs incurred by the Commission for the replacement of the species involved in the violation in an amount determined by Commission regulation consistent with the values established by the American Fisheries Society (AFS) or other recognized professional fisheries organization. Replacement costs may only be assessed for violations relating to Federally listed threatened or endangered species and other species of fish designated by the Commission.

 When determining the replacement costs for game fish, the Commission consulted guidelines established by AFS, specifically, Southwick, R. I. and A. J. Loftus, ed. (2003). ''Investigation and monetary values of fish and freshwater mussel kills.'' American Fisheries Society Special Publication 30. The Commission updated AFS's 2003 values to 2012 values using the United States Department of Labor, Bureau of Labor Statistics CPI Inflation Calculator at Costs were averaged for the various size groups. The Commission has been relying on AFS values for establishing replacement costs in pollution cases for over 20 years.

 AFS has not established values for herptiles and, to the Commission's knowledge, no other recognized professional fisheries organization has done so. However, it is standard practice for state resource agencies, including the Commission, to look to the commercial market when determining replacement costs for reptiles and amphibians in pollution and poaching cases. The Commission last updated its list of commercial values for herptiles in 2010 and therefore relied on those market values when establishing their replacement costs. Specifically, the median cost of each species from commercial vendors was identified on the Internet using values for adults to simplify the process. The herptiles selected represent the animals that are most targeted in poaching cases and that have relatively high commercial values. The Commission has been relying on commercial values to establish replacement costs for reptiles and amphibians for the last 15 years.

 With regard to Federally listed species, the Commission determined that the bog turtle is the species most targeted in poaching cases. Its replacement cost was determined in the same manner as the other herptiles, that is, by determining its commercial value on the Internet.

 The Commission adds § 63.56 to read as set forth in the proposed rulemaking published at 43 Pa.B. 3235.

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 amendment to § 63.50 will not impose new costs on the private sector. The addition of § 63.56 will impose new costs on anglers who are convicted of or plead guilty to violating section 2109 or 2110 of code. Because these sections of the code are new, the Commission does not have a long history of violations of these sections and therefore is unable to estimate the impact to anglers who violate them. Since sections 2109 and 2110 of the code went into effect on October 24, 2012, there have been four violations of section 2109 of the code and eight violations of section 2110 of the code. The fish species involved included 41 steelhead (20 to 28 inches), 2 brown trout (20 inches), 1 golden rainbow trout (22 inches), 5 stocked trout (7 to 11 inches) and 1 crappie (not measured).

H. Public Comments

 Notice of proposed rulemaking was published at 43 Pa.B. 3235. The Commission did not receive public comments concerning the proposed rulemaking.


 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 no public comments were received.

 (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.


 The Commission, acting under the authorizing statutes, orders that:

 (a) The regulations of the Commission, 58 Pa. Code Chapter 63, are amended by amending § 63.50 and adding § 63.56 to read as set forth at 43 Pa.B. 3235.

 (b) The Executive Director will submit this order and 43 Pa.B. 3235 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 43 Pa.B. 3235 and deposit them with the Legislative Reference Bureau as required by law.

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

Executive Director

Fiscal Note: Fiscal Note 48A-244 remains valid for the final adoption of the subject regulations.

[Pa.B. Doc. No. 14-81. Filed for public inspection January 10, 2014, 9:00 a.m.]

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