PROPOSED RULEMAKING
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 51 AND 63]
Administration and Fishing
[31 Pa.B. 4652] The Fish and Boat Commission (Commission) proposes to amend Chapters 51 and 63 (relating to administrative provisions; and general fishing regulations). 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 administration and fishing.
A. Effective Date
The proposed amendments, if approved on final-form rulemaking, will go into effect upon publication of an order adopting the amendments in the Pennsylvania Bulletin.
B. Contact Person
For further information on the proposed amendments, contact Laurie E. Shepler, Assistant Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This proposal is available electronically through the Commission's website (http://www.fish.state.pa.us).
C. Statutory Authority
The proposed amendments to § 51.25 (relating to demand for or waiver of hearing) are published under the statutory authority of section 928 of the code (relating to revocation, suspension or denial of license, permit or registration). The proposed amendments to § 51.41 (relating to general) are published under the statutory authority of sections 928, 2102, 2305, 2711, 2903 and 2904 of the code. The proposed amendments to §§ 51.89, 63.5, 63.11, 63.15 and 63.21 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 the Commission's regulations pertaining to administration and fishing. The specific purpose of the proposed amendments is described in more detail under the summary of proposal.
E. Summary of Proposal
(1) Section 51.25. The Commission's regulations provide that before the Commission may suspend, deny or revoke an individual's license, permit, special license or boat registration issued under the authority of the code, the Commission must give that individual an opportunity to be heard. The individual must submit a timely demand for a hearing, and the demand must be in writing. After an individual requests a hearing, the Executive Director appoints a presiding officer to conduct the hearing on the Commission's behalf. Although the Game Commission's regulations provide for a nonrefundable filing fee of $35, the Commission currently does not charge a fee. The Commission accordingly proposes to amend this section to provide for a $35 nonrefundable filing fee. The Commission also proposes to amend this section to provide that if an individual demands a hearing and subsequently fails to appear, the individual waives the right to a hearing, and a hearing will not be conducted.
(2) Sections 51.41, 51.89, 63.11 and 63.15. When the General Assembly amended the law to transfer administrative responsibility related to commercial artificial propagation from the Commission to the Department of Agriculture, it repealed Chapter 33 of the code (relating to propagation and sale of fish). Therefore, any references to this chapter or any of the sections contained in the chapter must be removed from the Commission's regulations. Accordingly, the Commission proposes to amend these sections as set forth in Annex A.
(3) Sections 63.5 and 63.21 (relating to methods of fishing; and designation of fishing regulations). The code provides that if a person violates a regulation promulgated under section 2102(a), the Commission has designated as being for the protection of fish or fish habitat or for the health and safety of persons who fish, that person commits a summary offense of the second degree. The penalty is a $100 fine or imprisonment not exceeding 20 days. If a person violates a regulation promulgated under section 2102(b), that person commits a summary offense of the third degree. The penalty is a $50 fine. As such, an individual who is caught intentionally snagging steelhead, for example, pays a $100 fine, whereas an individual who is caught netting steelhead pays only a $50 fine. This disparity occurs because the Commission promulgated § 63.9 (relating to snatch fishing, foul hooking and snag fishing) under section 2102(a) of the code and designated it as being for the protection of fish or fish habitat or for the health and safety of persons who fish. The Commission, on the other hand, promulgated § 63.5 (relating to fishing devices) under section 2102(b) of the code.
To correct the inconsistency in the current fine structure for using various illegal methods of taking fish from Commonwealth waters, the Commission proposes the amendments set forth in Annex A.
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. Currently, no more than 20 individuals per year request administrative hearings regarding the proposed suspension, denial or revocation of their licenses, permits, special licenses or boat registrations issued under the authority of the code. Therefore, the fiscal impact of the amendments to § 51.25 will be minimal. With the exception of the proposed changes to § 51.25, the proposed amendments will impose no new costs on the private sector or the general public. The proposed amendments to § 51.25, as previously stated, will impose a $35 nonrefundable filing fee.
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 to 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 DirectorFiscal Note: 48A-118. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 51. ADMINISTRATIVE PROVISIONS
Subchapter A. PRELIMINARY PROVISIONS § 51.25. Demand for or waiver of hearing.
(a) A respondent shall submit a timely demand for hearing with the answer to the order to show cause. The demand shall be in writing and shall be accompanied by a nonrefundable filing fee of $35 in the form of a money order, certified check or bank cashier's check made payable to ''Pennsylvania Fish and Boat Commission.'' A hearing will not be conducted nor a demand deemed filed until the complete filing fee is received by the Commission in the form specified and within the time frame designated. Failure to file a demand for a hearing or to submit the filing fee in the amount and form specified within the time limit set for filing an answer will be deemed a waiver of the right to hearing. The Commission will return to the respondent any filing fee that it receives that does not comply with this subsection.
* * * * * (c) If a respondent demands a hearing and subsequently fails to appear at the hearing after being given written notice of the date and time, the respondent's failure to appear will be deemed a waiver of the right to a hearing, and a hearing will not be conducted and the filing fee will not be refunded.
(d) Subsection (a) supplements 1 Pa. Code §§ 33.21 and 33.22 (relating to filing fees; and mode of payment of fees).
Subchapter E. PERMIT PROCEDURES § 51.41. General.
This subchapter establishes the [agencies] agency practices and procedures to be followed in consideration and disposition of applications for permits the granting or denial of which is discretionary, including permits issued under sections 2902, 2903, 2905, 2906, 3106[, 3301, 3309] and 3509 of the code and including permits issued under provisions of the code which contain the word, ''may.''
Subchapter I. PERMITS TO DRAW OFF IMPOUNDED WATERS § 51.89. General permits.
* * * * * (b) Notwithstanding the other provisions of this subchapter, this section constitutes a general permit for the Commission[,] and cooperative nurseries recognized by the Commission [and holders of artificial propagation licenses under section 3301 of the code (relating to artificial propagation licenses)] to draw down impounded waters without applying for an individual permit when the waters to be drawn down are located on hatchery property and the draw down is in connection with hatchery operations. The general permit authorized by this subsection does not waive a requirement for a permittee to apply for and obtain other necessary permits.
Subpart B. FISHING
CHAPTER 63. GENERAL FISHING REGULATIONS § 63.5. [Fishing devices] Methods of fishing.
It is unlawful to use a method for taking fish from the waters of this Commonwealth, including boundary lakes and rivers, unless the use of the method is specifically authorized by this part.
§ 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] 2507 of the code (relating to sale of certain fish, reptiles and amphibians prohibited) that eels caught lawfully under this section may not be sold or offered for sale.
* * * * * § 63.15. Field dressing of fish.
* * * * * (c) This section does not apply to fish caught or sold in compliance with [Chapters] Chapter 31 [and 33] of the code (relating to regulated fishing lakes[; and propagation and sale of fish]). This section applies to catches of fish caught under a Lake Erie commercial license under Chapter 29 of the code (relating to special licenses and permits) only until the fish reach established retail or wholesale markets.
* * * * * § 63.21. Designation of fishing regulations.
(a) The following regulations are designated under section 2102(a) of the code (relating to rules and regulations) as being for the protection of fish or fish habitat or for the health and safety of persons who fish:
* * * * * (4) Section 63.5 (relating to methods of fishing).
* * * * *
[Pa.B. Doc. No. 01-1562. Filed for public inspection August 24, 2001, 9:00 a.m.]
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