RULES AND REGULATIONS
FISH AND BOAT COMMISSION
[ 58 PA. CODE CHS. 61 AND 69 ]
Fishing; Seasons, Sizes and Creel Limits
[40 Pa.B. 7233]
[Saturday, December 18, 2010]
The Fish and Boat Commission (Commission) amends Chapters 61 and 69 (relating to seasons, sizes and creel limits; and fishing in Lake Erie and boundary lakes). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code).
A. Effective Date
The final-form rulemaking will go into effect on January 1, 2011.
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 www.fish.state.pa.us.
C. Statutory Authority
The amendments to §§ 61.1—61.3 and 69.12 are published under the statutory authority of section 2102 of the code (relating to rules and regulations).
D. Purpose and Background
The final-form rulemaking is designed to improve, enhance and update the Commission's fishing regulations. The specific purposes of the amendments are described in more detail under the summary of changes.
E. Summary of Changes
Because mussels, sometimes referred to as clams in slang, have declined greatly in their populations and their ranges both Nationally and within this Commonwealth, the conservation of mussels faces many challenges. Nearly 82% (54 species) of the native mussels in this Commonwealth are considered endangered, extirpated or of special concern (PABS, 2008). Nationally, mussels are declining; 70% of the 297 native species have an endangered, threatened, special concern or extinct status (Williams and Neves, 1995).
Under §§ 61.1(d), 61.2(d) and 69.12 (relating to Commonwealth inland waters; Delaware River, West Branch Delaware River and River Estuary; and seasons, sizes and creel limits—Lake Erie and Lake Erie tributaries), harvest of up to 50 fish bait is permitted per day with no seasons or size limits. Inland seasons, sizes and creel limits for fish bait apply to the Susquehanna River and Lehigh River under §§ 61.7 and 61.8 (relating to Susquehanna River and tributaries; and Lehigh River, Schuylkill River and tributaries). Under § 61.3(c) (relating to Pymatuning Reservoir), there are no season, size or creel restrictions on fish bait. Section 102 of the code (relating to definitions) defines ''fish bait'' as ''Unless otherwise provided by commission regulation, crayfish or crabs, mussels, clams and the nymphs, larvae and pupae of all insects spending any part of their life cycle in the water.''
Harvest of endangered and threatened mussels is prohibited under §§ 75.1 and 75.2 (relating to endangered species; and threatened species). Since mussels as a group are severely threatened, additional reduction of mussel populations by harvest as fish bait should be prohibited. Specifically, with the existing laws, the Commission is concerned that:
(1) Rare species will be harvested because they are difficult to identify correctly. Unless mussels are prohibited from bait use, anglers or other collectors could inadvertently collect rare or protected species. Additionally, enforcement of laws prohibiting harvest of protected species will not be effective if the Commission's waterways conservation officers are not well trained in the identification of mussels.
(2) Commercial pressure for mussel harvest for the pearl industry could decimate populations. Mussel shells are collected and pieces of nacre are used to seed pearl-producing oysters. At this time, a commercial harvester can legally take large quantities of mussels, removing many thousands of pounds of mussels a year. With a legal limit of 50 mussels per day and no season, 10 commercial collectors could legally take 500 mussels per day (182,500 mussels per year) as fishbait under existing Commission regulations. Commercial mussel poachers have been convicted for illegal harvest in West Virginia, Ohio, Illinois, Indiana, Michigan and in the southeastern United States. By prohibiting a legal possession limit of mussels as fishbait, the Commonwealth can better protect its mussel resource.
(3) The transportation of aquatic invasive mussels could result in the introduction to additional waterways. Discharged zebra mussel and quagga mussels used for bait present significant risk for invasive mussel infestation. Although it is unlawful to possess the exotic zebra mussel and the closely related quagga mussel, they may be inadvertently transported to otherwise uninfested waters as fishbait.
The Pennsylvania Biological Survey's Bivalve Subcommittee and the Mollusk Committee have requested that the current mussel harvest with a Pennsylvania fishing license be disallowed. Other states, such as West Virginia, Ohio, Maryland, New Jersey, New York, Indiana and Illinois, have laws making mussel harvest illegal.
For the previous reasons, the Commission proposed that the harvest of live mussels in this Commonwealth be prohibited by amending §§ 61.1—61.3. After the publication of the proposed rulemaking, however, the Commission discovered that § 69.12 was not among the sections proposed to be amended to prohibit the harvest of live mussels. This omission was inadvertent. Because the amendment of § 69.12 does not enlarge the original purpose of the proposed rulemaking (which is to protect declining populations of native mussels by prohibiting harvest on a Statewide basis), the Commission amends this section as set forth in Annex A. The Commission amends §§ 61.1—61.3 to read as set forth in the proposed rulemaking published at 40 Pa.B. 3669 (July 3, 2010).
The final-form rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The final-form rulemaking will not impose new costs on the private sector or the general public, except to the degree there is commercial harvest of mussels in this Commonwealth.
H. Public Involvement
Notice of proposed rulemaking was published at 40 Pa.B. 3669 (July 3, 2010). During the formal public comment period, the Commission received two comments supporting the proposed rulemaking. One of the commentators, however, noted that there are individuals who collect non-native species of Corbicula for consumption and who will be prohibited from doing so if the proposed amendments are adopted. Copies of all public comments were provided to the Commissioners.
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 all public comments 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.
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 §§ 61.1—61.3 to read as set forth at 40 Pa.B. 3669 and by amending § 69.12 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Executive Director will submit this order, 40 Pa.B. 3669 and Annex A 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, 40 Pa.B. 3669 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect on January 1, 2011.
JOHN A. ARWAY,
Fiscal Note: Fiscal Note 48A-219 remains valid for the final adoption of the subject regulations.
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 69. FISHING IN LAKE ERIE AND BOUNDARY LAKES
Subchapter B. SPORT FISHING AND ANGLING
§ 69.12. Seasons, sizes and creel limits—Lake Erie and Lake Erie tributaries.
* * * * *
(f) Subject to the provisions of subsections (d) and (e), the following seasons, sizes and creel limits apply to Lake Erie, Lake Erie tributaries and Presque Isle Bay, including peninsula waters:
SPECIES SEASONS MINIMUM SIZE DAILY LIMIT MUSKELLUNGE and
Inland seasons apply. See § 61.1 (relating to Commonwealth inland waters). 40 inches 1 PIKE
Inland seasons apply. See § 61.1 (relating to Commonwealth inland waters). 24 inches 2 WALLEYE January 1 to midnight March 15 and 12:01 a.m. the first Saturday in May
to December 31.
15 inches 6 BASS
January 1 to first Saturday after April 11 and first Saturday after June 11
until December 31.
15 inches 4 (combined species) First Saturday after April 11 until
first Saturday after June 11.*
20 inches 1 TROUT and SALMON First Saturday after April 11 until midnight Labor Day. 9 inches 5 (combined species only 2 of which may be lake trout). 12:01 a.m. the day after Labor Day
until midnight on the Friday before
the first Saturday after April 11.
15 inches 3 (combined species only 2 of which may be lake trout). STURGEON No open season ENDANGERED SPECIES YELLOW PERCH From December 1 through March 31 7 inches 30 From April 1 through November 30 None 30 SUNFISH, CRAPPIES, CATFISH,
ROCK BASS, SUCKERS, EELS,
CARP, WHITE BASS
Open year-round None 50 (combined species) BURBOT (when taken by hook and line) Open year-round None 5 BURBOT (when taken by scuba divers
by use of nonmechanical spears or gigs
at a depth of at least 60 feet)
June 1 to September 30 None 5 SMELT (when taken by hook and line) Open year-round None None BAIT FISH
FISH BAIT, except mussels/clams
Open year-round None 50 (combined species) MUSSELS/CLAMS Closed year-round 0 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 fishing tournaments and fishing derbies)) for bass on Lake Erie, Lake Erie tributaries or Presque Isle Bay during the period from the first Saturday after April 11 until the first Saturday after June 11.
[Pa.B. Doc. No. 10-2402. Filed for public inspection December 17, 2010, 9:00 a.m.]
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