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PA Bulletin, Doc. No. 03-2358




[58 PA. CODE CHS. 65, 69 AND 97]

Fishing; Boating

[33 Pa.B. 6061]

   The Fish and Boat Commission (Commission) amends Chapters 65, 69 and 97 (relating to special fishing regulations; fishing in Lake Erie and boundary lakes; and operator provided equipment). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). This final-form rulemaking relates to a miscellaneous special regulation at Duck Harbor Pond in Wayne County, the minimum size limit for walleye in Lake Erie and its tributaries, and fire extinguishers.

A.  Effective Date

   This final-form rulemaking will go into effect on January 1, 2004.

B.  Contact Person

   For further information on this final-form rulemaking, contact Laurie E. Shepler, Assistant Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This final-form rulemaking is available electronically through the Commission's website (

C.  Statutory Authority

   The amendment to § 65.24 (relating to miscellaneous special regulations) is published under the statutory authority of section 2307 of the code (relating to waters limited to specific purposes). The amendments to § 69.12 (relating to seasons, sizes and creel limits--Lake Erie and Lake Erie tributaries) are published under the statutory authority of section 2102 of the code (relating to rules and regulations). The amendments to § 69.33 (relating to use of trap nets) are published under the statutory authority of section 2903 of the code (relating to boat and net licenses for boundary lakes). The amendments to § 97.2 (relating to fire extinguishers) are published under the statutory authority of section 5123 of the code (relating to general boating regulations).

D.  Purpose and Background

   This final-form rulemaking is designed to update, modify and improve the Commission's regulations pertaining to fishing and boating. The specific purpose of this final-form rulemaking is described in more detail under the summary of changes.

E.  Summary of Changes

   (1)  Section 65.24. In the mid-1990s, miscellaneous special regulations were established on 228-acre Duck Harbor Pond to enhance management for larger trout. A 14-inch minimum length limit and two trout per day creel limit were imposed to enable hatchery fingerling and adult trout to attain a larger size given suitable habitat and forage for year-round trout survival and growth. Results of sampling efforts have not given the Commission reason to continue with the more restrictive regulations. In addition, it is suspected that the more restrictive regulations have discouraged trout anglers from fishing the lake as spring stocked trout averaging 10 inches or so in length are smaller than the legal size. The Commission would like to continue stocking trout in Duck Harbor Pond but with Statewide regulations to encourage greater use at the lake. Accordingly, the Commission deleted the miscellaneous special regulation on Duck Harbor Pond as set forth in the notice of proposed rulemaking, published at 33 Pa.B. 3127 (July 5, 2003). By removing the miscellaneous special regulation, Duck Harbor Pond will be considered an approved trout water open to year-round fishing. Trout may be harvested during the regular and extended trout seasons in accordance with Statewide regulations.

   (2)  Sections 69.12 and 69.33. Under § 69.12, walleye in Lake Erie and Presque Isle Bay are currently regulated by a season (January 1 to March 15 and the first Saturday in May to December 31), a minimum length of 15 inches and a creel limit of six per day. The commercial trap net fishery is regulated by the same season in § 69.31, an annual total allowable catch (set annually) and a 15-inch minimum length limit in § 69.33.

   Walleye abundance in Lake Erie has continued to decline since population levels reached historic highs in the late 1980s. The reasons for the decline are not fully known but include repeated years of poor recruitment due in part to weather patterns and temperature variations, a shift in lake productivity due to zebra mussels and increased fishing rates. Sampling by Commission biologists and fisheries managers from the other Lake Erie jurisdictions has revealed that poor to almost nonexistent year classes of walleyes have been produced during 2000 and 2002. The 1999 and 2001 year classes have been stronger and represent the future spawning stock of Lake Erie walleye. Lake-wide, the 1999 year class is the strongest since 1986. Thus, steps must be taken to protect these stronger year classes until they have the opportunity to grow and become a part of the adult spawning population.

   The Lake Erie Committee (Committee), a subcommittee of the Great Lakes Fishery Commission, which includes representatives of Lake Erie's various jurisdictions, has recognized that walleye populations have dramatically declined. At its annual meeting in March 2003, the Committee held the lake-wide total allowable catch (TAC) of walleye, which includes sport and commercial harvest, at a level equal to the last 2 years. The Committee also stated that based on current population and harvest information, a reduction in the TAC is warranted and should be expected in 2004. Additional discussion occurred at the Committee's June 2003 meeting. Jurisdictions are expected to take measures to reduce harvest of walleye with the objective of rebuilding the walleye population, restoring the directed walleye fishery and restoring catch rates of walleye.

   Fishery data collected by Commission biologists indicate that an increased minimum length limit is the most appropriate method for this Commonwealth to reduce the harvest of walleye beginning in 2004. A creel limit reduction alone will not effectively conserve enough fish to meet the goals. When walleye populations are low, catch rates are down and few people catch their limit of six walleyes. On the other hand, length limits have been shown to be an effective tool in protecting specific segments of a fish population. Creel survey data collected by the Commission from 1993 to 2002 show that a 20-inch minimum length limit would protect, on average, 31% of walleyes caught from harvest, including the important 1999 and 2001 year classes. This protection should result in an increased abundance of walleyes less than 20 inches and improve the stability of future spawning stocks. There is currently one licensed commercial fisherman in this Commonwealth. The new length limit would also apply to his activities.

   The Commission solicited public comments concerning the proposal and did not receive any written comments. However, one of the Commissioners received several oral comments. In response to those public comments, the Commission, on final-form rulemaking, adopted a minimum size limit of 18 inches instead of the 20 inches and reduced the creel limit from six per day to four per day during the harvest season from the first Saturday in May to March 15 of the following year. The cumulative effect of this change in 2004 will achieve a reduction in harvest comparable to that which would have been achieved by the 20-inch minimum size limit alone with the expectation that the 2001 walleye year class will be entering the fishery in 2004.

   (3)  Section 97.2. This section currently requires a fire extinguisher in all gasoline-powered boats that have the probability for entrapping gasoline vapors in closed compartments. This section is intended to reduce the incidence and severity of fires from ignition of gasoline vapors. The section tracks the Federal regulations on this subject with one exception. The Federal regulations contain examples of boat construction or situations when fire extinguishers are or are not required.

   Commission staff's original concept was to present a clarifying amendment to § 97.2 to deal with situations with jon boats and similar craft with after-installed flooring in them. When the Commission's Boating Advisory Board (BAB) considered this item, it recommended that the Commission approve the publication of a notice of proposed rulemaking containing a broader amendment to require fire extinguishers on all boats with internal combustion motors. Although that proposal went beyond Federal requirements, it had the advantage of setting forth a clear line for requiring fire extinguishers. Accordingly, the Commission proposed amending § 97.2 to require fire extinguishers on all boats equipped with internal combustion motors.

   When the Commission published a notice of proposed rulemaking, it sought public comments on the most restrictive proposal. The proposal had the advantage of providing a ''bright line'' rule that is easy to understand and enforce. However, the proposal also had the disadvantage of requiring fire extinguishers on boats where they may not be necessary from a safety viewpoint.

   When the BAB again considered this item prior to the Commission's consideration on final-form rulemaking, the BAB was equally divided regarding whether to recommend that the Commission adopt the amendments set forth in the notice of proposed rulemaking. While some BAB members advocated requiring fire extinguishers on all boats equipped with internal combustion motors for safety and enforcement reasons, others believed that this requirement was overly broad and placed an undue burden on many boaters.

   As a result of the BAB's discussion, Commission staff determined that it would be useful to take another look at the Federal regulation and examine the requirements of other states. Neighboring states, New York, Maryland and New Jersey, refer to the Federal requirements for fire extinguishers. The regulations of Delaware, West Virginia and Ohio are the same as, or very similar to, the Federal rule. Although the concept of a bright line rule requiring all boats with internal combustion motors to have fire extinguishers is somewhat attractive, it appears that a broad requirement may not be necessary or prudent. Thus, on final-form rulemaking, the Commission adopted the amendments, which are based on the Federal requirements, to read as set forth in Annex A.

F.  Paperwork

   This final-form rulemaking will not increase paperwork and will create no new paperwork requirements.

G.  Fiscal Impact

   This final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. This final-form rulemaking will impose no new costs on the private sector or the general public.

H.  Public Involvement

   A notice of proposed rulemaking was published at 33 Pa.B. 3127. Regarding the fire extinguisher proposal, the Commission received a total of 21 public comments--1 prior to, 18 during and 2 after the public comment period. Of the 18 received during the formal comment period, 9 supported the proposed change, 9 opposed it. Copies of all public comments were provided to the Commissioners. The Commission did not receive any written public comments concerning the other proposals.


   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 the 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 65, 69 and 97, are amended by amending § 65.24 to read as set forth at 33 Pa.B. 3127 and §§ 69.12, 69.33 and 97.2 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

   (b)  The Deputy Executive Director will submit this order, 33 Pa.B. 3127 and Annex A to the Office of Attorney General for approval as to legality as required by law.

   (c)  The Deputy Executive Director shall certify this order, 33 Pa.B. 3127 and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect on January 1, 2004.

Deputy Executive Director

   Fiscal Note:  Fiscal Note 48A-146 remains valid for the final adoption of the subject regulations

Annex A



Subpart B.  FISHING



§ 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:

*      *      *      *      *

WALLEYE January 1 to midnight March 15 and 12:01 a.m. the first Saturday in May to December 31 18 inches 4
*      *      *      *      *


§ 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
*      *      *      *      *
(Stizostedion vitreum)
18 inches 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.
*      *      *      *      *

Subpart C.  BOATING


§ 97.2.  Fire extinguishers.

   (a)  All motorboats shall carry at least the minimum number of Coast Guard approved hand portable fire extinguishers required for their class as specified in Appendix B, except that motorboats less than 26 feet in length, propelled by outboard motors and not carrying passengers for hire, need not carry fire extinguishers if the construction of the motorboats will not permit the entrapment of explosive or flammable gases or vapors.

   (1)  Fire extinguishers shall be carried on motorboats that meet one or more of the following conditions. The motorboats have:

   (i)  Closed compartments under thwarts and seats where portable fuel tanks may be stored.

   (ii)  Double bottoms not sealed to the hulls or that are not completely filled with flotation material.

   (iii)  Closed living spaces.

   (iv)  Closed stowage compartments in which combustible or flammable materials are stowed.

   (v)  Permanently installed fuel tanks.

   (2)  The following conditions do not, in and of themselves, require that fire extinguishers be carried:

   (i)  Bait wells.

   (ii)  Glove compartments.

   (iii)  Buoyant flotation material.

   (iv)  Open slatted flooring.

   (v)  Ice chests.

   (b)  Motorboats engaged in a race which has been officially sanctioned, as set forth in § 109.6 (relating to special marine events), or while engaged in tuning up for a race which has been officially sanctioned, need not carry the extinguisher required by this section.

   (c)  Fire extinguishers carried in compliance with this section shall be maintained in a usable condition and shall be charged in compliance with the specifications on the manufacturer's certification label. Gauges shall be operable and nozzles shall be free of obstruction. In prosecutions for violations of this section, there shall be a rebuttable presumption that a fire extinguisher is not usable if its gauge shows that the extinguisher is discharged.

   (d)  Fire extinguishers shall be installed and maintained so that they are immediately available within arms reach of the operator or passengers on the boat.

[Pa.B. Doc. No. 03-2358. Filed for public inspection December 12, 2003, 9:00 a.m.]

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